Opinion
No. CV 04 4003632 S
April 13, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#120)
I THE FACTS
This action arises out of injuries the plaintiff, Luther Williams, allegedly sustained in a November 11, 2001 motor vehicle accident. On November 15, 2004, the plaintiff filed a complaint against the defendant, Travelers Property Casualty of America, seeking uninsured motorist coverage for his injuries. The plaintiff had died on September 20, 2004, some two months prior to the filing of this action.
On September 14, 2006, the plaintiff filed a motion to substitute the estate of Luther Williams as the plaintiff. No action has yet been taken on this motion. On September 22, 2006, the plaintiff filed a substituted complaint naming the estate of Luther Williams as the plaintiff On March 6, 2007, an affidavit in lieu of administration was filed and an estate was pending in the Bridgeport Probate Court on March 6, 2007.
The defendant has moved to dismiss the first count of the plaintiff's complaint for lack of subject matter jurisdiction, the plaintiff being deceased prior to the institution of the action and therefore did not have standing to sue. The plaintiff objects, contending that the court should permit the estate of Luther Williams to be substituted as the plaintiff pursuant to General Statutes § 52-109.
General Statutes § 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff."
II DISCUSSION
"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, CT Page 5402 3 Conn.App. 598, 600, 490 A.2d 1024 (1985).
In the present case, at the time the suit was commenced, the named plaintiff was not alive, no estate had been opened and no executor or administrator had been appointed. Therefore, there was no legal entity in existence with the capacity to sue. Id., 601; see also Diaz v. PARCC Health Care, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4006901 (January 30, 2006, Rodriguez, J.) ( 40 Conn. L. Rptr. 648, 649) ("the plaintiff, as a deceased person, cannot be a party to a lawsuit because she is a nonexistent entity and does not have standing"); Noble v. Corkin, 45 Conn.Sup. 330, 333, 717 A.2d 301 (1998) ("[A] dead person is a nonexistent entity and cannot be a party to a suit. Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity").
The plaintiff's contention that the court should permit the estate of Luther Williams to be substituted as the plaintiff, pursuant to § 52-109, is to no avail. Section 52-109 provides that when an action has been commenced in the name of the wrong person by mistake, the court may allow substitution of a party plaintiff. This section is not, however, applicable or appropriate where, as here, a case has been initiated by an entity that is not recognized at all as a "person" for the purposes of bringing suit. Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 602; see also Boulais v. Boulais, Superior Court, judicial district of New Haven, Docket No. CV 94 0368009 (February 3, 1995, Hodgson, J.) ( 13 Conn. L. Rptr. 462, 463) ("[w]here the initial plaintiff is not a legal entity with the ability to bring suit . . . § 52-109 is inapplicable . . .").
Accordingly, the motion to dismiss is granted because the court lacks subject matter jurisdiction over the present action.