Opinion
CV166020938S
04-26-2018
The UNITED ILLUMINATING CO. v. Kurt L. SCHUTZ et al.
UNPUBLISHED OPINION
File Date: April 27, 2018
OPINION
Iannotti, J.
The defendants, Kurt Schutz and Angela Schutz, move to dismiss this case on the ground that the court is without subject matter jurisdiction. Specifically, the defendants argue that Kurt Schutz has died and the plaintiff, United Illuminating Co., has failed to substitute the executor of the estate within one year of receiving written notice of his death. The plaintiff concedes that it did not make such application within one year of the time its counsel knew of Kurt Schutz’s death, but argues that there is good cause to excuse the late attempt to substitute. For the following reasons, the court grants the defendants’ motion to dismiss.
" [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).
Our Supreme Court held that § 52-599 " gives the plaintiff an absolute right to have the representative of a deceased defendant cited in within one year after the defendant’s death, and thereafter it is within the power of the court to order him cited in if good cause is shown for the delay." (Internal quotation marks omitted.) Worden v. Francis, 170 Conn. 186, 188, 365 A.2d 1205 (1976). " 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 ... Thus, the scope of our discretion requires us to review the intent and the reasons given by the plaintiff for not moving to substitute the executor in place of the defendant conservator within the one-year period set forth in § 52-599, and to determine if those reasons, particular to this case, amounted to good legal excuse." (Citations omitted; 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).
General Statutes § 52-599(b) provides in relevant part: " 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 defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent ..."
" A plaintiff’s delay in seeking substitution would be excused for good cause if all the parties interested were disabled by sickness, or lived remote from the domicile of the intestate, or had not heard of his death ... A plaintiff’s delay would also be excused when the plaintiff’s administrator waited to seek substitution because the defendant’s attorney had asked him not to file papers with the court, and had assured him that the debt at issue in the litigation would be paid." (Citation omitted; internal quotation marks omitted.) Id., 591. Furthermore, " [n]eglect, 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." Liljehult v. Johnson, Superior Court, judicial district of New London, Docket No. CV- 11-6010384-S (October 11, 2013, Cole-Chu, J.) (56 Conn.L.Rptr. 929, 930). Other examples of not showing good cause include waiting until the plaintiff received the death certificate from the defendant, assuming that the decedent’s widower would file the decedent’s will with the Probate Court and petition to have himself appointed as an executor, and hope that the case would settle. See Marino v. Burgess, Superior Court, judicial district of New Haven, Docket No. CV-08-5019866 (June 1, 2010, Robinson, J.) (50 Conn.L.Rptr. 22, 24).
In the present case, the plaintiff claims that its delay was based on the plaintiff’s counsel’s understanding of the defendants’ assets. They argue that because " the real property where the parties lived was in the name of Angela Schutz, Kurt Schutz appeared to have limited assets" and the plaintiff " would have had to go through the expense of opening an estate for Kurt Schutz with no expectation that it would benefit the plaintiff and ... may well have caused distress to the surviving spouse ..." These financial reasons do not constitute a good legal excuse; the possibility of not receiving damages or having to expend more finances is not good cause. Thus, for the foregoing reasons, the defendants’ motion to dismiss is granted.