Opinion
CV166063291S
03-29-2018
William NYGARD v. Bruce CROSS et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, William Nygard (plaintiff) commenced this action by service of writ, summons and complaint against the defendants, Bruce Cross (Cross) and R.J. Shore Automotive, LLC (R.J. Shore). The return date was July 5, 2016, and the complaint dated May 19, 2016, was returned to court on June 28, 2016, and alleges the following facts. On or about October 20, 2015, the plaintiff a pedestrian was standing in garage unit 108 located at his condominium complex at 120 Short Beach Road, Branford, Connecticut. The plaintiff’s automobile was parked in garage unit 108. The plaintiff was unable to start his vehicle and contacted the defendant R.J. Shore to service the vehicle. The defendant Cross, an agent, servant and/or employee of the defendant R.J. Shore attempted to start the plaintiff’s automobile while the plaintiff was standing in the immediate vicinity of the vehicle. The defendant Cross attempted to start the plaintiff’s vehicle and at no time did the defendant Cross instruct the plaintiff to move away from the vehicle prior to starting the vehicle. As the defendant Cross attempted to start the vehicle, the vehicle suddenly and without warning began moving backward while the driver’s door of said vehicle was still open, striking the plaintiff, causing him to be thrown to the pavement which resulted in serious injuries to the plaintiff. The plaintiff’s complaint is in two counts. Count one alleges negligence against Cross and count two alleges negligence against R.J. Shore based upon vicarious liability.
On January 1, 2017, the plaintiff died. On January 6, 2017, plaintiff’s counsel filed a suggestion of death of the plaintiff and attached a copy of the obituary of the plaintiff. The defendants have filed a motion to dismiss for lack of subject matter jurisdiction on grounds that the plaintiff failed to substitute the executor of the estate as plaintiff within six months of the plaintiff’s death in accordance with General Statutes § 52-599(b).
Plaintiff’s counsel has filed an objection and argues that his lack of compliance with § 52-599(b) is for good cause as allowed by the statute, in that counsel has tried diligently to locate the executor of the decedent’s estate. The court heard oral argument on the motion at short calendar on March 19, 2018.
DISCUSSION
" [A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). Further, it is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 651-52.
In their memorandum of law in support of the motion to dismiss, the defendants argue that it has been over a year since plaintiff’s counsel has filed the suggestion of death, and that prior to the proper substitution of either an executor or administrator " the surviving party and the court alike are powerless to proceed" with the case. (Citations omitted; internal quotation marks omitted.) Negro v. Matos, 110 Conn.App. 485, 498, 955 A.2d 599, cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008). The defendants argue that because the case cannot proceed, they have been unable to conduct any discovery or take any measures to defend the case for over a year. The defendants further contend there is no good reason for the plaintiff’s counsel’s inability to substitute the administrator of the estate for this length of time.
Plaintiff’s counsel in opposition to the motion focuses on the cases that have construed the language in § 52-599(b) " to mean that the fiduciary may be substituted ... after the time prescribed for good cause shown." Negro v. Matos, supra, 110 Conn.App. 498. Plaintiff’s counsel argues that good cause exists to allow substitution beyond the six-month statutory period because he has been diligently trying to locate the executor of the decedent’s estate since the decedent passed away but was unsuccessful until recently. Plaintiff’s counsel has recently located the decedent’s son and is trying diligently to substitute him for the decedent. Plaintiff’s counsel argues that it was impossible to substitute the executor because his identity was unknown and as such the delay in substituting the executor was for good cause. Thus, the plaintiff argues, the court should deny the defendant’s motion to dismiss.
It is well settled that " [a] dead person is a nonexistent entity and cannot be a party to a suit." (Internal quotation marks omitted.) Noble v. Corkin, Superior Court, judicial district of New Haven, Docket No. CV-96-0392737-S (March 20, 1998, Blue, J.) (21 Conn.L.Rptr. 547, 548). A cause or right of action is not necessarily lost, however, simply because a party dies; pursuant to § 52-599, Connecticut’s right of survival statute, an action shall survive in favor of or against the executor or administrator of the decedent. Section 52-599(b) specifically provides the procedure for when a party plaintiff to a civil action dies: " If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff’s death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived." " It is a well established principle, however, that [d]uring the interval ... between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it." (Internal quotation marks omitted.) Negro v. Metas, supra, 110 Conn.App. 498.
General Statutes § 52-599 provides, in pertinent part, as follows: " (a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person. (b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff’s death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived ..."
In 1987, the General Assembly amended § 52-599 via No. 87-237 of the 1987 Public Acts, which, in part, replaced " thereafter" with " of the plaintiff’s death or at any time prior to the action commencing trial."
" [T]he language of § 52-599 ... has been construed to mean that the fiduciary may be substituted as a matter of right within the time prescribed by the statute, but the court in its discretion may permit the fiduciary to be substituted after the time prescribed for good cause shown." Id. " Good cause is defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason." (Internal quotation marks omitted.) Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 591, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997). " Neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship do not constitute good cause to excuse the delay in filing the motion to substitute in the appropriate court." Id., 591-92.
Thus, " [t]he necessary starting point is recognition of the two-pronged aspect of the required analysis. If plaintiff satisfies an explicit statutory timeframe for moving to substitute, plaintiff has the statutory right to substitute. If plaintiff does not satisfy an explicit limitation on the right to substitute a representative, however, then it becomes a matter of discretion for the court as to whether to allow a belated substitution, with good cause as the benchmark for exercise of discretion." Kuehl v. Koskoff, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-990171076S, (July 25, 2013, Povodator, J.) 56 Conn.L.Rptr. 558.
This court must therefore, first decide whether " a statutory timeframe for substitution has been satisfied or whether such timeframe has not been satisfied such that it becomes a discretionary decision for the court with the existence of good cause as the focal point of the inquiry." Id. In determining whether substitution has been satisfied within the statutory time frame, both counsel for the plaintiff decedent and the defendant have focused solely on the language which states that " [i]f a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff’s death ..." Neither counsel have focused on the language that follows which states " or at any time prior to the action commencing trial." Thus, the court’s determination of whether the prescribed statutory time frame for substitution has been met requires this court to interpret the language " or at any time prior to the action commencing trial."
The trial court in Kuehl v. Koskoff, supra, Superior Court, Docket No. CV-990171076S was faced with interpreting this language and concluded that although the six-month time period had expired for substitution, and a showing of good cause had not been demonstrated, the motion to substitute was timely under the " at any time prior to the action commencing trial" language of § 52-599(b). Citing well established statutory construction principles, the Kuehl court reasoned that the six-month rule is not rendered redundant by interpreting the statutory language as providing the plaintiff with both the six-month rule with the good cause gloss and the " at any time prior to the action commencing trial" rule because the two alternatives may operate exclusive of each other. Id. " [W]hile there may be substantial overlap between the six-month period in the statute and the ‘any time prior to ... trial’ concept, there [are] situations in which one but not the other might be applicable. The six-month rule would apply even if the death were less than six months prior to, scheduled trial, or even if trial had already commenced ... Conversely, the ‘any time prior to ... trial’ standard would apply, even after six months had elapsed, so long as trial had not commenced. " Id.
The Kuehl court also discussed possible policy reasons for the 1987 amendment to § 52-599(b), which added the " at any time prior to the action commencing trial" language: " the court presumes that the amendment to the statute was motivated, in part if not in whole, by a desire to avoid potentially meritorious claims being thrown out of court due to a failure to meet a somewhat artificial and technical deadline. In effect, the amendment imposed a ‘no harm, no foul’ perspective on the issue of substitution of plaintiffs, such that as long as substitution were attempted prior to trial, there would be no justification for denying a trial on the merits." Kuehl v. Koskoff, supra, Superior Court, Docket No. CV-990171076S.
In Cooper v. Small, Superior Court, judicial district of New London, Docket No. CV-13-6016173S (July 2, 2015, Zemetis, J.) , the issue presented was whether the court should grant the defendants’ motion to dismiss on the ground that a proper fiduciary of the plaintiff’s estate failed to timely enter to prosecute the action under § 52-599(b). The court denied the defendants’ motion to dismiss, concluding, like the court had in Kuehl, that the language in § 52-599(b) prescribes two time limits: any time prior to the action commencing trial and/or within six months of the death of the plaintiff, and therefore, in accordance with the plain language of the statute, since trial had not yet commenced, the plaintiff could still " file for substitution at any time prior to the action commencing trial." Id.
First, and foremost, it is undisputed here, that substitution has not been filed within the prescribed six-month time frame set forth in § 52-599(b). The decedent died on January 1, 2017, and to date a substitution of an executor or administrator has not been filed. Neither counsel for the defendant nor counsel for the decedent plaintiff address the applicability of § 52-599(b)’ s language " at any time prior to the action commencing trial" in their memoranda of law. Therefore this court, like the trial courts in Kuehl and Cooper, must rely on an interpretation of the language of the statute itself to determine its application to the present case and whether the time for substitution has passed.
" The court is persuaded that the ‘at any time prior to the action commencing trial’ language is present in § 52-599(b) to provide plaintiffs with an alternative avenue for substituting an executor for a party plaintiff that is distinct from the ‘within six months of death of the plaintiff’s time frame also statutorily prescribed in § 52-599(b).
" ‘Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.’ (Internal quotation marks omitted.) Lopa v. Brinker International, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010). The statute may be consistently read to address distinct periods of time: ‘any time prior to commencing trial’ and additionally ‘within six months of death of the plaintiff.’ The first period is self-explanatory: prior to commencing trial. The latter period would presumably address a time for substitution after commencing trial.
" The defendants’ assertion that substitution of the party plaintiff must be filed within six months of the plaintiff’s death even if prior to the commencement of trial or after six months of the plaintiff’s death, before commencement of trial, but only when good cause was shown for the delay in substitution beyond six months after the plaintiff’s death, suggests requirements not found in the statute. The statute does not mandate a substitution within six months of death, the statute clearly states ‘[I]f a party plaintiff dies, his executor ... may enter within six months of the death of the plaintiff’ ... as may implies discretion and not a mandatory legislative direction. Nor does the statute have a requirement of " good faith" for the failure to file within the six months of death of the plaintiff. Rather, the statute prescribes two time limits: any time prior to the action commencing trial and/or within six months of the death of the plaintiff. The court finds that under § 52-599(b) the plaintiff may file for substitution at any time prior to the action commencing trial." (Emphasis in original.). Cooper v. Small, supra, Superior Court, Docket No. CV-13-6016173S.
This court agrees with the reasoning in both Kuehl and Cooper and is persuaded that the " at any time prior to the action commencing trial" language is present in § 52-599(b) to provide plaintiffs with an alternative avenue for substituting an executor for a party plaintiff that is distinct from the " within six months of death of the plaintiff" time frame also statutorily prescribed in § 52-599(b). Since jury selection in the present case is not due to commence until September 7, 2018, the court finds that under § 52-599(b) the plaintiff may file for substitution at any time prior to the action commencing trial.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is denied.