Argued March 16, 2015
Action to recover damages for, inter alia, personal injuries sustained as a result of allegedly defective products used or sold by the defendants, brought to the Superior Court in the judicial district of Fairfield, where the court, Bellis, J., granted summary judgment in favor of the defendant A.O. Smith; thereafter, the plaintiff withdrew the matter as to the named defendant et al.; subsequently, Adrienne Brochu, executrix of the estate of Adrien Brochu, was substituted as plaintiff; thereafter, the court rendered judgment of dismissal, and the substitute plaintiff appealed to this court.
The decedent, A, had commenced this action against the defendants for personal injuries he sustained as a result of his alleged exposure to asbestos. A died in 2009, and B was appointed the executrix of his estate shortly thereafter. B did not move to substitute herself as the party plaintiff for more than four years. In 2012, the court issued notice that the matter had been scheduled for trial in 2014. The defendants sought a continuance on the ground that since A had died, no witnesses had been disclosed and no meaningful discovery had been conducted since his death. The court then issued notice denying the motion without prejudice, and directed the court clerk to order B to file a motion to substitute. On the scheduled first day of trial, the court granted B's motion to substitute and addressed, sua sponte, whether the action should be dismissed for failure to prosecute the action with reasonable diligence. After hearing argument, the trial court denied the defendants' motion for continuance and rendered judgment dismissing the action, from which B appealed to this court. Held that the trial court did not abuse its discretion by dismissing the action for B's failure to prosecute the action with reasonable diligence: B never provided the trial court with a compelling reason for having failed to substitute herself as the party plaintiff for more than four years, which severely inhibited the forward pace of the litigation, prevented the court from properly considering substantive motions, and interfered with the defendants' efforts to obtain necessary discovery; moreover, although, pursuant to the survival of cause of action statute (§ 52-599) B was allowed as a matter of right to substitute herself as party plaintiff in her capacity as executrix of A's estate, the time for making the decision to continue the litigation on behalf of the estate cannot be without limitation, and the lengthy period of inactivity by B, coupled with the prejudice to the court and the defendants, demonstrated that B's efforts were not reasonably diligent.
Marc P. Kunen, pro hac vice, with whom were Robert M. Cheverie, and, on the brief, Dino G. Galardi, pro hac vice, for the appellant (substitute plaintiff).
Patrick J. Glinka, with whom, on the brief, was Kimberly Hammond, for the appellee (defendant Crane Co.).
James A. Hall, with whom, on the brief, was James R. Oswald, for the appellee (defendant Foster Wheeler Corp.).
Kevin C. McCaffrey, for the appellee (defendant Goulds Pumps, Inc.).
Gruendel, Sheldon and
[159 Conn.App. 585] PRESCOTT, J.
In this appeal, the primary issue is whether, following the death of the original plaintiff, an unjustified delay of more than four years in substituting a representative of the decedent's estate as the party plaintiff supports the trial court's dismissal of the action [159 Conn.App. 586] for failure to prosecute with due diligence. A few weeks prior to his death in August, 2009, the original plaintiff, Adrien Brochu, commenced the present action alleging injuries sustained from exposure to asbestos or asbestos containing products attributable to numerous defendants. The current plaintiff, Adrienne
Brochu, was appointed as executrix of the decedent's estate in September, 2009, but did not move to substitute herself in as the party plaintiff in this action until December, 2013, more than four years later. The plaintiff now appeals from the trial court's judgment dismissing the action sua sponte on the ground that she failed to prosecute the action with due diligence. The plaintiff claims that, despite the lengthy delay in substituting herself in, the court improperly dismissed the case for lack of diligence because the case was scheduled for trial and she appeared on that trial date ready to proceed. We conclude that the court ...