Opinion
No. FST CV 10 6002914 S
June 25, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS #104
FACTUAL BACKGROUND
The plaintiffs, Janice Thorsen and Amy Thorsen in their capacity as co-administrators of the estate of Gloria Thorsen, have brought this wrongful death lawsuit against the defendants, Nursing and Home Care, Inc., Janet Almedia, R.N. (the defendants), Health and Home Care Resources, Rebecca Newton and Marie Azor. In their complaint, the plaintiffs allege that the various defendants committed medical malpractice and were negligent and reckless in the chain of events that led to the death of the plaintiffs' decedent, Gloria Thorsen, on January 14, 2007. Specifically, the plaintiffs allege that their decedent, who was bed ridden and on oxygen, was allowed to smoke cigarettes by home health aids, which led to the plaintiffs' decedent being burned alive after the decedent's cigarettes caused her oxygen tank to ignite.
The only defendants who are parties to the motion to dismiss that is presently before the court are the Nursing and Home Care, Inc. and Janet Almedia, R.N. They will be referred to as the defendants in this memorandum.
The present case is the second lawsuit brought under these facts. On April 13, 2005, a lawsuit titled Estate of Gloria Thorsen v. Nursing and Home Health Care, Inc. was commenced by service of process. The defendants moved to dismiss this case for lack of subject matter jurisdiction on the ground that an estate is not a legal entity that can commence a lawsuit. This motion was granted on November 16, 2009. See Estate of Gloria Thorsen v. Nursing and Home Health Care, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5011497 (November 16, 2009, Adams, J.). The plaintiffs then commenced the current case by service of process on December 15, 2009. In their complaint, the plaintiffs allege that the present case is timely under the accidental failure of suit statute, General Statutes § 52-592.
General Statutes § 52-555 provides for a two-year statute of limitations in wrongful death actions. This statute of limitations period commences on the date of the decedent's death Nevertheless, upon petition to the clerk of the court, General Statutes § 52-190a(b) provides for an automatic ninety-day extension of the statute of limitations period in medical malpractice cases. As the plaintiffs allege that the decedent died on January 14, 2007, and the original lawsuit was commenced on April 13, 2009, the first lawsuit would have been untimely without the ninety-day extension provided by § 52-190(b). Following an examination of the file from the first lawsuit, the court failed to find any indication that the clerk of the court granted a ninety-day extension of the statute of limitations. This issue was never raised by the defendants as part of the motion to dismiss. In an attempt to resolve this issue, the court scheduled oral argument on April 7, 2010 for the parties to address this concern. At this hearing, the plaintiffs' counsel indicated that he had obtained a ninety-day extension of the statute of limitations, but he failed to attach this document to the complaint or file it with the court. Consequently, the court ordered both parties to submit briefs on the legal effect of this omission. In their brief, the plaintiffs attached a copy of a § 52-190a(b) petition that appears to have been granted by the chief clerk John Morrow on January 6, 2009. The defendants do not dispute that the clerk actually granted this extension; they only contend that the document needed to be attached to the complaint or filed with the court. In their brief, the defendants failed to provide any case law that clearly supports this proposition. As the plain language of § 52-190a(b) provides that the ninety-day extension of the statute of limitations is automatically granted when requested and the statute does not require that any documentation must be filed with the court or attached to the complaint, the court determines that the first lawsuit was timely because the plaintiff has produced documentation indicating that a ninety-day extension of the statute of limitations was granted by the clerk of court.
There were originally two plaintiffs in the first lawsuit, the estate of Gloria Thorsen, and Thomas Thorsen, who is Gloria Thorsen's mentally disabled son. In the first lawsuit, Thomas Thorsen alleges claims against Health and Home Care Resources, Rebecca Newton and Marie Azor due to the fact that they witnessed his mother being burned to death.
Although the original case was dismissed as to the defendants Nursing Home and Health Care, Inc. and Janet Almeida, R.N., it is still pending as to the remaining defendants because Thomas Thorsen's claims were not affected by the dismissal of the case against the estate of Gloria Thorsen.
On February 4, 2010, the defendants filed a motion to dismiss and a memorandum of law in support. The defendants move to dismiss this action on the ground that it is barred by the two-year statute of limitations governing wrongful death claim, General Statutes § 52-555, and the plaintiffs cannot avail themselves of the accidental failure of suit statute, § 52-592. On March 8, 2010, the plaintiffs filed a memorandum of law in opposition to the defendants' motion. The court heard this matter at short calendar March 22, 2010. A second argument was conducted on April 7, 2010. Thereafter, additional briefs were submitted to the court on April 29, 2010.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638, (2007). Ordinarily, the defense of statute of limitations "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such case, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised . . . at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). Our Supreme Court has determined that Connecticut's wrongful death statute, § 52-555, created a right of action that did not exist at common law, and therefore, its statute of limitations is a jurisdictional prerequisite to maintaining a wrongful death action. Ecker v. West Hartford, 205 Conn. 219, 233, 530 A.2d 1056 (1987). Consequently, this motion to dismiss is properly before the court.
In their memorandum of law, the defendants argue that § 52-592 is inapplicable because the first case between the parties was brought by an estate. Under Connecticut law, an estate is not a natural or artificial person, and, therefore, it cannot commence a lawsuit. As the first lawsuit was a nullity, the defendants argue that § 52-592 does not apply to the present case. In response, the plaintiffs argue that they can avail themselves of § 52-592 because the first lawsuit was dismissed due to lack of subject matter jurisdiction. Furthermore, the plaintiffs argue, despite the defendants' protestations to the contrary, that the first lawsuit was actually commenced as defined by General Statutes § 52-45a. For these reasons, the plaintiffs argue that the defendants' motion to dismiss should be denied.
General Statutes § 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was omitted, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment." (Emphasis added.) There is no dispute that Judge Adams dismissed the first lawsuit against the defendants for lack of subject matter jurisdiction and the plaintiffs filed the present case within the timing sequence provided by § 52-592. Accordingly, the dispositive issue becomes whether the first lawsuit was an "action" as that term is defined in § 52-592.
General Statutes § 52-592(b) provides: "When any action has been brought against an executor or administrator or continues against an executor or administrator after the death of the defendant and has filed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action."
Our Supreme Court has examined the application of § 52-592 under circumstances that are very factually similar to the present case. In Issac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989), the plaintiff brought a wrongful death lawsuit under the belief that she had been appointed the administratrix of a decedent's estate. Following the commencement of the lawsuit, the plaintiff discovered that she actually had not been appointed as administratrix, and, therefore, the case was dismissed for lack of subject matter jurisdiction. The plaintiff then brought a new lawsuit under § 52-592. The trial court determined that the plaintiff could not utilize § 52-592 to bring a second lawsuit. In reversing the decision of the trial court, the Supreme Court stated: "that our accidental failure of suit statute, General Statutes 52-592, is remedial and is to be liberally interpreted." (Internal quotation marks omitted.) Id., 728.
As further stated by our Supreme Court in Isaac, the defendants "claim that the first suit was not an action because without an administratrix to bring suit within the time limitation contained in the wrongful death statute, no timely action was commenced by the claimed administratrix. In other words, they claim that because the first suit never legally existed, there was no action that could be saved by § 52-592. This claim was firmly answered by Judge Cardozo in Gaines v. New York, 215 N.Y. 533, 540, 109 N.E. 594 (1915), where in a case concerning the applicability of New York's saving statute, the court states the following: `The defendant argues that an action dismissed for want of jurisdiction is a nullity in the same sense as if it had never been begun at all. But that is an extreme view. Such an action has at least some of the consequences of an action begun in a court of competent jurisdiction.'" Id., 730-31. Accordingly, our Supreme Court "conclude[d] that, contrary to the defendants' claims, the plaintiffs first suit was an `action' fitting precisely within the scope of the `actions' which § 52-592 was designed to save under the circumstances listed therein." Id., 732.
In their memorandum of law, the defendants attempt to distinguish Isaac by arguing the following: "Here, the original action which was dismissed was brought by the estate of Gloria Thorsen. An estate is not a natural or artificial person . . . A natural person, such as Deborah Isaac . . . may commence an action. She may not have been appointed Administratrix for purposes of instituting suit under Section 52-555, but nevertheless, she had a right to bring suit. An estate of a decedent is qualitatively different than an individual. It has no legal existence."
Additional language from Isaac serves to undermine the defendants' position. In Isaac, the Supreme Court stated that: "[A] change of parties does not preclude an application of [a saving] statute where the change is merely nominal or the interest represented in the renewed action is identical with that in the original action . . . In light of the remedial purpose of § 52-592, we conclude that total identity of plaintiffs is not a prerequisite to application of the statute. We look, instead, to the essence of the plaintiff's status and the interest she represented. Deborah Isaac was the purported administratrix of Redgnard Isaac's estate in the first instance and the actual administratrix in the second case. The cause of action and the claimed factual background, as well as all defendants, were identical in both instances. Accordingly, application of § 52-592 to this case is not precluded . . . The [saving] statute is designed to [ensure] to the diligent suitor the right to a hearing in court [until] he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts." (Citations omitted; internal quotation marks omitted.) Id., 733. Given the liberal construction of § 52-592 provided by our Supreme Court, and the fact that a change of parties does not preclude application of the accidental failure of suit statute, § 52-592 can be utilized by the plaintiffs in the present case to bring this action.
Several Superior Court decisions have also supported this same result. In Manson v. Mr. Coffee, Inc., a plaintiff named the "Estate of Ella Cubbage" brought a lawsuit for wrongful death was dismissed for lack of subject matter jurisdiction because an estate lacks standing to bring a lawsuit. The court then determined that the decedent's administratrix could bring a second lawsuit under § 52-592. Manson v. Mr. Coffee, Inc., Superior Court, judicial district of New Haven, Docket No. 368332 (November 9, 1995, Zoarski, J.) ( 15 Conn. L. Rptr. 436, 438-39); see also Estate of Cecile A. 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) (when granting a defendant's motion to dismiss for lack of subject matter jurisdiction, the court suggested that "a party authorized by law to initiate a claim may do so by bringing her own action" as had the plaintiff administratrix in Isaac). This court adopts the position espoused by these Superior Court judges and thus holds that the plaintiffs in the present case can avail themselves of the accidental failure of suit statute, § 52-592.
CONCLUSION
For the reasons stated above, the defendants' motion to dismiss is denied.