Opinion
CV126034148S
12-23-2015
Etroya Fields v. Joseph Rivera
UNPUBLISHED OPINION
RULING ON OBJECTION TO BILL OF COSTS (#121)
Matthew E. Frechette, J.
The issue presented is whether the court should sustain the defendant's objection to the plaintiff's bill of costs on the ground that it does not fall within a waiver of sovereign immunity. The court sustains the defendant's objection.
FACTS
This case arises out of a negligence action where the plaintiff, Etroya Fields, was injured while she was a passenger on a bus that was struck by an uninsured driver. The bus was owned by the defendant, H.N.S. Management Co., Inc. (H.N.S.), and the plaintiff filed an uninsured motorist claim against the defendant on November 6, 2012, pursuant to General Statutes § 38a-336. On July 9, 2015, the matter was tried to this court and it was determined that the uninsured driver was liable, and the plaintiff was awarded damages totaling $20, 219.24.
In the first count of her complaint, the plaintiff also asserts negligence claims against Joseph Rivera, the operator of the uninsured vehicle that struck the bus, and Gregory Melendez, the owner of that vehicle. On February 7, 2014, the plaintiff filed motions for default for failure to appear against Rivera and Melendez, both of which were granted on February 19, 2014. For purposes of this memorandum, H.N.S. is referred to as the sole defendant.
Section 38a-336 is titled " uninsured and underinsured motorist coverage, " and provides in relevant part: " (a)(1)(A) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage ..."
The plaintiff then filed a bill of costs on July 31, 2014, seeking a total of $2, 229.82. The defendant subsequently filed an objection to the plaintiff's bill of costs on August 6, 2015, on the grounds that the bill of costs does not fall within a waiver of sovereign immunity. The defendant alternatively argues that even if costs were taxable against the state, certain costs claimed are not recoverable by statute. The plaintiff filed a reply to the defendant's objection on August 20, 2015, in which she contends that the defendant's claim of sovereign immunity does not apply, to which the defendant filed a surreply on September 4, 2015. This matter was heard at short calendar on October 19, 2015, after which the plaintiff filed a supplemental memorandum on October 29, 2015, and the defendant filed an additional reply on November 27, 2015.
DISCUSSION
" The law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by way of statute . . . Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them." (Citation omitted; internal quotation marks omitted.) Davis v. Westport, 61 Conn.App. 834, 853-54, 767 A.2d 1237 (2001). Connecticut General Statutes § 52-257 provides for fees of parties in civil actions, and enumerates the costs parties in civil actions may recover.
The defendant argues that its objection must be sustained because the plaintiff's bill of costs does not fall within a waiver of sovereign immunity. The defendant specifically argues that the plaintiff brought her bill of costs pursuant to General Statutes § § 52-257 and 52-260, and that neither of those sections contains a waiver of sovereign immunity that would allow costs against the state. The defendant points to the police report that delineates that the bus is owned by the Department of Transportation, and that the bus is self-insured by the state. The plaintiff replies that the case at bar is simply an uninsured motorist claims that does not does not involve sovereign immunity or a waiver thereof.
Section 52-560 provides for witness fees in the court.
The defendant further contends that the case was moved from the jury trial list and assigned to the court trial because there is no constitutional right to a jury trial in claims against the state. The plaintiff replies that the defendant claimed the matter for trial by jury, and later withdrew that claim. The plaintiff's counsel further states that they agreed to the withdrawal from the jury docket for unrelated reasons, and the defendant should be estopped from claiming such an entitlement. The court cannot infer from the docket the reasons the parties agreed to withdraw the case from the jury docket. The case that the defendant cites, Skinner v. Angliker, 211 Conn. 370, 559 A.2d 701 (1989), merely stands for the proposition that there is no right to a jury trial in a case against a sovereign.
" The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state's immunity from liability or suit . . . [Our Supreme Court] has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . [When] there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) Hicks v. State, 297 Conn. 798, 801-02, 1 A.3d 39 (2010). " When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language . . . Accordingly, in an action seeking damages against the state, a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . ." (Citation omitted; internal quotation marks omitted.) Id.
In support of its argument, the defendant relies in part on Gordon v. H.N.S. Management Company, Inc., 272 Conn. 81, 861 A.2d 1160 (2004), where our Supreme Court has held that H.N.S. is an arm of the state, and therefore entitled to sovereign immunity. The court in Gordon noted, " [t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Id., 93. In Gordon, the court formulated a criteria for determining whether or not a corporate entity is an arm of the state entitled to assert the defense of sovereign immunity. The court then determined that the defendant met five of those criteria, and ultimately held that H.N.S. is an arm of the state entitled to sovereign immunity. Id., 105. Because the Supreme Court has held that H.N.S. is an arm of the state, that status is extended to the defendant in the present case. It therefore must be determined if the plaintiff's bill of costs can be taxed against an arm of the state.
The criteria outlined by the court in determining whether an entity is entitled to sovereign immunity is whether: " (1) the state created the entity and expressed an intention in the enabling legislation that the entity be treated as a state agency; (2) the entity was created for a public purpose or to carry out a function integral to state government; (3) the entity is financially dependent on the state; (4) the entity's officers, directors or trustees are state functionaries; (5) the entity is operated by state employees; (6) the state has the right to control the entity; (7) the entity's budget, expenditures and appropriations are closely monitored by the state; and (8) a judgment against the state. To establish that an entity is an arm of the state, an entity need not satisfy every criteria. Rather [a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive." (Internal quotation marks omitted.) Gordon v. H.N.S. Management Company, Inc., supra, 272 Conn. 98-99.
" In the absence of a specific statutory provision allowing the taxation of costs against the state, this court is required to adhere to the widely recognized principle that statutes relating to costs and authorizing the imposition of costs in various kinds of actions or proceedings, or under various prescribed circumstances, which do not in express terms mention the state, are not enough to authorize imposing costs against the state." State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978). " Even where the monetary award is so minimal as the sum a prevailing party would be entitled to receive as taxable costs . . . this court has refused to sanction a monetary judgment against the state in the absence of explicit statutory authority . . . Our refusal to permit an award of so trifling a sum as taxable costs against the state on the ground that sovereign immunity foreclosed such an interpretation of the general terms of our taxation of costs statute strongly militates against approval of the much more substantial award of attorneys fees . . ." (Emphasis added; Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003).
The court in Hicks v. State, supra, 297 Conn. 798, declined to award postjudgment interest against the state. The question before the court in Hicks was whether sovereign immunity barred a claim for postjudgment interest when that claim was brought pursuant to a statutory waiver. The relevant statute in that case was General Statutes § 52-556, which expressly waives the state's sovereign immunity with respect to damages arising from a state employee's negligent operation of state owned and operated vehicles. While the court recognized that damages are recoverable pursuant to the waiver, it noted that a postjudgment interest award is not a component of damages. " [D]amages, which has acquired a specific meaning in the law, is defined as [m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury . . . The injury for which a plaintiff may recover damages is specifically identified in § 52-556 as the injury suffered as a result of a state employee's negligent operation of a state owned and insured motor vehicle . . . [T]here is no language to suggest that postjudgment interest is awarded as a part of damages for the specific injury contemplated in § 52-556. (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 803. Furthermore, " if the legislature waives sovereign immunity by creating a separate statutory cause of action against the state . . . the statute should not be read so as to have implicitly waived the state's immunity from the imposition, pursuant to separate and distinct statutes, of damages or costs in excess of those damages expressly authorized in the statute creating the cause of action." (Internal quotation marks omitted.) Id., 806.
Hicks is distinguishable from the present case, because the plaintiff here has not brought pursuant to section 52-556. If that were the case, the court would similarly have to determine if the plaintiff's bill of costs is a component of damages, which would fall within a waiver.
The plaintiff's argument that this is simply a contract claim brought pursuant to § 38a-336 is unavailing since the plaintiff is still attempting to bring a claim against the state. The plaintiff must point to a waiver that would explicitly waive the state's sovereign immunity in regards to imposing costs, which she has failed to do here. Accordingly, the court sustains the defendant's objection to the plaintiff's bill of costs.
It should be further noted that there is no mandate that the State provide uninsured motorist coverage under section 38a-336. See Willoughby v. New Haven, 254 Conn. 404, 436-37, 757 A.2d 1083 (2004).