Opinion
No. CV 05 4003287 S
July 5, 2005
MEMORANDUM OF DECISION, RE MOTION #101 MOTION TO DISMISS
Facts
The plaintiff alleges in her complaint that on or about January 31, 2003 she was operating her motor vehicle in a southbound direction on South Washington Street in Plainville when a vehicle operated by the defendant struck her vehicle and caused her to be injured.
The plaintiff commenced this action on December 30, 2004 by having a State Marshal leave a copy of a writ, summons and complaint at 82 Wildcat Road, Burlington, the defendant's usual place of abode.
On February 23, 2005, alleging the death of Charles McLaughlin on October 9, 2004, the defendant filed a motion to dismiss for reason of lack of subject matter jurisdiction.
It is undisputed that the defendant was deceased at the time that process was left at the 82 Wildcat Road address.
Discussion
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter 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.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[I]n ruling upon whether a complaint survives a motion to dismiss, 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.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, CT Page 11035 780 A.2d 98 (2001). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).
The plaintiff in the instant action served the defendant "at his usual place of abode" almost three months after the defendant's death. "[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. Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court." Noble v. Corkin, 45 Conn.Sup. 330, 333, (1998) ( 21 Conn. L. Rptr. 547).
The plaintiff acknowledges that a cause of action may not be brought against a deceased defendant, but points out that it may be brought against the estate of a decedent. The defendant goes on to assert that the defendant's insurance carrier knew or should have known that its insured had passed away. The plaintiff further asserts that the insurer "had an obligation to inform the plaintiff that the Defendant was deceased so that suit could be properly filed against the decedent's estate." (Plaintiff's Memorandum of Law in Support of Plaintiff's Objection to Motion to Dismiss, at pages 4-5.)
The plaintiff asserts that active negotiations were taking place between the defendant's insurance carrier up to and including December 22, 2004 and that she was still actively treating and filed the action due to the fact that the statute of limitations was about to expire.
The plaintiff did not learn of the defendant's death until February 18, 2005, eighteen days after the statute of limitations had expired.
The plaintiff argues that this court should use its equitable power and "find that the statute of limitations was tolled pending appointment of an administrator of the McGlaughlin (sic) Estate." The plaintiff would then to seek to substitute the administrator of the estate. (Plaintiff's Memorandum of Law in Support of Plaintiff's Objection to Motion to Dismiss, at page 6.) While it may be more equitable to permit the plaintiff to proceed with the instant action, the proposed remedy ignores the fact that if the court does not have subject matter jurisdiction, it does not have the power to grant the requested. As was stated earlier in this memorandum, "[jurisdiction of the subject-matter is the power [of the court] to hear and determine cases . . ." Southern New England Telephone Co. v. Dept. of Public Utility Control, Supra at 21.
Conclusion
Whereas this court is without subject matter jurisdiction, the defendant's motion to dismiss for lack of subject matter jurisdiction is granted. So ordered.
Richard A. Robinson, J.