Opinion
No. KNLCV106004056S
November 12, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 109)
FACTS
On July 2, 2010, the plaintiffs, Jesus Rivera and Allstate Insurance Company (Allstate), as subrogee of Rivera, filed a revised three-count complaint against the defendants, Elaine D. Wilkinson, the state of Connecticut, department of administrative services (the state), and Yesnia Tondre for damages allegedly sustained pursuant to a motor vehicle accident. The complaint alleges the following facts. On October 23, 2009, a motor vehicle owned by Rivera and operated by Tondre was damaged when it collided with a motor vehicle owned by the state and operated by Wilkinson. The collision resulted from Wilkinson's negligent operation of the state-owned motor vehicle. At the time of the accident, Rivera's motor vehicle was insured by Allstate, which seeks subrogation to the extent of property damage that it sustained on behalf of Rivera under the terms of the insurance policy. Count one alleges a claim for negligence against Wilkinson. Counts two and three are brought against the state, seeking to impose liability on the state for Wilkinson's actions as a state employee operating the motor vehicle within the scope of her employment, and based upon Wilkinson's status as a permissive user of the state owned motor vehicle, respectively.
On July 7, 2010, the defendants filed a motion to dismiss all three counts of the complaint brought by the plaintiff for lack of subject matter jurisdiction. The defendants filed a memorandum of law in support of their motion. On September 8, 2010, the plaintiff filed an objection to the defendants' motion to dismiss, accompanied by a memorandum of law in support of its objection.
Tondre is not a party to the present motion. Hereinafter, the term the defendants refers to Wilkinson and the state, collectively. Furthermore, the defendants do not move to dismiss the claims made by Rivera. Hereinafter, the term the plaintiff refers to Allstate, individually.
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). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 134.
"When a [trial] 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
I COUNT ONE A Sovereign Immunity
The defendants argue that their motion to dismiss count one against Wilkinson should be granted because Wilkinson is immune from suit pursuant to the doctrine of sovereign immunity if the court determines that she has been sued in her official capacity. The plaintiff counters that Wilkinson has been sued in her individual capacity, and therefore, the plaintiff's action against her is not barred by the doctrine of sovereign immunity.
To determine whether count one is barred by sovereign immunity, the preliminary inquiry must be whether the plaintiff brought its claim against Wilkinson in her individual or official capacity. "It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities. Likewise, the defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities . . . Because an action against state employees in their official capacities is, in effect, an action against the state . . . the only immunity that can apply is the immunity claimed by the state itself — sovereign immunity . . . In an official-capacity action, individual capacity defenses are unavailable . . . [General Statutes § ]4-165 applies only to state officers and employees sued in their personal capacities . . ." (Citations omitted, internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006).
"[Our Supreme Court has] identified the following criteria for determining whether an action against an individual is, in effect, against the state and barred by the doctrine of sovereign immunity: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 93-94, 861 A.2d 1160 (2004).
"If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003). "[T]he identities of the parties are determined by their description in the summons." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). The court may also look to the complaint and the plaintiff's arguments in determining whether the plaintiff's claim is brought against Wilkinson in her individual or official capacity. See Miller v. Egan, supra, 265 Conn. 308-09.
In the present case, the plaintiff's complaint alleges that at the time of the accident, Wilkinson was operating a motor vehicle owned by the state. While the plaintiff alleges that Wilkinson is an employee of the state, it does not allege a matter in which she represents the state, the state does not appear to be the real party against whom relief is sought and a judgment against her would not operate to control the state's activities or subject it to liability. Moreover, Wilkinson was served at her personal address in Old Saybrook, Connecticut, and is described in the summons as "Elaine D. Wilkinson," with no mention made of her employment with the state. Because the court must indulge every presumption in favor of jurisdiction, count one of the plaintiff's complaint must be construed to be against Wilkinson in her individual capacity. As sovereign immunity applies only to actions brought against state employees in their official capacities, count one is not barred by the doctrine of sovereign immunity. As a result, the defendants' motion to dismiss count one on this ground must be denied.
B Statutory Immunity Pursuant to § 4-165
The defendants also argue that their motion to dismiss count one against Wilkinson should be granted because Wilkinson is immune from suit pursuant to General Statutes § 4-165 if the court determines that she has been sued in her individual capacity. The plaintiff counters that its claim against Wilkinson in her individual capacity is not barred by § 4-165. Having determined that count one can be construed to be brought against Wilkinson in her individual capacity, the court must now decide whether the claim is barred by statutory immunity pursuant to § 4-165.
General Statutes § 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." Therefore, pursuant to the statute, when considering a pretrial motion to dismiss based on statutory immunity, the court must "examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the [defendant was] acting outside the scope of [his or her] employment or wilfully or maliciously." (Internal quotation marks omitted.) Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).
The court will first address whether the plaintiff alleged sufficient facts to support a conclusion that Wilkinson was acting outside the scope of her employment at the time of the accident. The allegations in count one of the plaintiff's complaint contain insufficient information to establish that Wilkinson was acting outside the scope of her employment at that time. The defendants' motion to dismiss was accompanied by Wilkinson's affidavit, in which Wilkinson stated that at the time of the accident, she was traveling to a client's house in Norwich, Connecticut, and she was operating the state owned vehicle in the course of her employment as a social worker for the state. "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002). The plaintiff did not submit an affidavit with its opposition to the defendants' motion to contradict the statements set forth in Wilkinson's affidavit. "Our Supreme Court has stated: When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examiner adverse witnesses . . . Put another way, the due process requirement of a hearing is required only when issues of facts are disputed." (Citations omitted; internal quotation marks omitted.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007). Therefore, it was incumbent on the plaintiff to dispute the facts contained in the defendants' affidavit once it was submitted. Id. The plaintiff never offered any evidence to contradict or to dispute the facts set forth in Wilkinson's affidavit, and thus, the facts detailing Wilkinson's scope of employment, as set forth in the affidavit, are undisputed. As a result, even construing the allegations in their most favorable light, the court finds that the plaintiff failed to sufficiently allege facts to support a conclusion that Wilkinson was acting outside the scope of her employment at the time of the accident.
The court must then address whether the plaintiff alleged sufficient facts to support a conclusion that Wilkinson's alleged conduct at the time of the accident was wanton, reckless or malicious. The Supreme Court has defined conduct as sufficiently wanton, reckless or malicious if "the plaintiff [can] prove, on the part of the [defendant], the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . In order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . In sum, such conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 379.
In the present case, count one of the plaintiff's complaint alleges that the "collision and the resulting damages sustained to the [p]laintiff's motor vehicle were caused by the carelessness and negligence of . . . Wilkinson . . ." Additionally, the plaintiff's objection to the defendants' motion indicates that it is suing Wilkinson for negligently operating a motor vehicle. As a result, even construing the allegations in their most favorable light, the court finds that the plaintiff failed to sufficiently allege facts to support a conclusion that Wilkinson's alleged conduct at the time of the accident was wanton, reckless or malicious.
Based on the foregoing, statutory immunity pursuant to § 4-165 deprives this court of subject matter jurisdiction over the plaintiff's claim against Wilkinson in her individual capacity. As a result, the defendants' motion to dismiss count one of the plaintiff's complaint on these grounds must be granted.
II COUNTS TWO AND THREE
The defendants argue that their motion to dismiss counts two and three against the state should be granted on the grounds that § 52-556 does not waive the state's sovereign immunity for subrogation claims brought by insurance companies because an insurance company does not qualify as a "person" under the statute. The plaintiff counters that the proper interpretation of a "person" under § 52-556 includes an insurer, and therefore, the state is not protected by sovereign immunity.
"It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 258 Conn. 680, 683, 784 A.2d 347 (2001). General Statutes § 52-556 constitutes such a waiver of sovereign immunity, providing that "[a]ny person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury." It is a "well settled principle that when the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions, because statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 11, 950 A.2d 1247 (2008).
At issue is whether the legislature intended to limit the definition of "person" under § 52-556 to exclude parties other than the injured individual. The defendants' argument that the statute does not apply to an insurance company seeking subrogation relies primarily on American Manufacturers Mutual Ins. Co. v. State, Superior Court, judicial district of Hartford, Docket No. CV 94 0533136 (November 23, 1994, Sheldon, J.) ( 13 Conn. L. Rptr. 86). In American Manufacturers, the state moved to strike an action brought by an insurance company under General Statutes §§ 38a-369 and 52-556, as subrogee of its insured, to recover reparations benefits it had paid out to its insured who had been struck by a vehicle owned by the state and operated by a state employee. In granting the state's motion to strike, the court found, in reading the language of §§ 38a-369(c) and 52-556 together, that the statutes did not waive sovereign immunity as to subrogation actions brought by insurers, and therefore, the insurance company's action was barred by sovereign immunity. Id., 86-87. The statutory language in § 38a-369, which allowed an insurance company to recover what it paid out in basic reparations benefits from any "person or organization," was an essential factor in the court's decision. (Emphasis added.) Id., 87. The court noted that "the most logical meaning of the word `person,' in the context of the statute, is an individual human being, whereas an `organization' is a different type of legal entity which does not logically or necessarily include the [s]tate." Id.; see also Middlesex Mutual Assurance Co. v. Leiper, Superior Court, judicial district of Hartford, Docket No. CV 96 0565400 (May 9, 1997, Hennessey, J.) [ 19 Conn. L. Rptr. 434] (adopting reasoning from American Manufacturers in determining "person" under § 52-556 should not be interpreted to encompass insurer standing in shoes of injured party).
As a second basis for its decision to grant the state's motion to strike the insurance company's subrogation claim, the court in American Manufacturers discussed "the longstanding refusal of our courts to give a comparably expansive reading to General Statutes § 13a-149, the so-called `defective highway statute.'" American Manufacturers Mutual Ins. Co. v. State, supra, 13 Conn. L. Rptr. 87. According to the court, the defective highway statute, another example of a statute waiving the state's sovereign immunity, similarly limits its remedy by extending it only to highway travelers to the exclusion of other classes of persons. Id. The court's analysis addressed Quire v. Stamford, 231 Conn. 370, 650 A.2d 535 (1994), in which our Supreme Court concluded that intervention by the plaintiff's employer was permissible pursuant to General Statutes § 31-293(a) because, in an action against the city under the defective highway statute, the right to intervene under § 31-293(a) is "derived entirely from the plaintiffs' right to recover damages against the municipality under § 13a-149;" id., 376; and therefore, "the employer who intervenes in its employee's actions as authorized by § 31-293(a) does not enlarge the amount of the recovery against the municipality." Id., 377. The court in American Manufacturers distinguished the Quire decision by finding that, in the case before it, "the effect of permitting liability insurers to file their own independent subrogation actions against the [s]tate to recover whatever they pay out in basic reparations benefits to persons injured by [s]tate employees will inexorably expose the state to more litigation and to significantly greater expense than if such actions were not allowed." American Manufacturers Mutual Ins. Co. v. State, supra, 13 Conn. L. Rptr. 87.
The plaintiff counters, however, that the American Manufacturers decision is distinguishable from the present case, citing a more recent superior court decision, Colonial Penn Ins. Co. v. Burnham, Superior Court, judicial district of Hartford, Docket No. CV 01 0810486 (April 11, 2002, Koletsky, J.) ( 32 Conn. L. Rptr. 10), as authority for its proposition. In denying the defendants' motion to dismiss the insurance company's subrogation claim against the state pursuant to § 52-566, the court in Colonial Penn distinguished the American Manufacturers decision from the case before it based on that court's reliance on the statutory language of § 38a-369, which has since been repealed, and refused to expand the American Manufacturers court's holding into a general rule that subrogation is not permissible in any context. Id., 11. The Colonial Penn court first noted the existence of Connecticut cases brought by insurance companies under the defective highway statute that have found that the statute waives the state's sovereign immunity and permits subrogation. Id., see, e.g., Continental Casualty Co. v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. 130458 (August 2, 1996, Peck, J.). The court then found that where the plaintiff was seeking subrogation only as to the extent of the property damage sustained, "[a]s in Quire v. Stamford, supra, 231 Conn. 370, and Continental Casualty Co. v. Waterbury, supra, Docket No. CV 130458, the plaintiff's claim derives entirely from the insured's right to recover against the state under § 52-556 and does not enlarge the recovery against the state," and furthermore, the plaintiff's claim "does not expose the state to more litigation than if the action were not allowed, as the insured has the statutory right to seek the same amount." Id., 12.
In addition to distinguishing the case before it from the American Manufacturers decision, as further support for its decision to deny the defendants' motion to dismiss the insurance company's subrogation claim against the state, the court in Colonial Penn found that the use of the term "person" within § 52-556 had not been defined. Colonial Penn Ins. Co. v. Burnham, supra, 32 Conn. L. Rptr. 12. "When the legislature has not defined a term, it is appropriate to look to the common understanding expressed in law and in dictionaries." (Internal quotation marks omitted.) Connecticut Natural Gas Corp. v. Dept. of Consumer Protection, 43 Conn.App. 196, 200, 682 A.2d 547, cert. denied, 239 Conn. 938, 684 A.2d 707 (1996). The Colonial Penn court further cited General Statutes § 1-1(k), which provides that "[t]he words `person' and `another' may extend and be applied to communities, companies, corporations, public or private, limited liability companies, societies and associations." Moreover, the court noted that the dictionary defines a "person" as "[i]n general usage, a human being . . . though by statute [the] term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers." Black's Law Dictionary (6th Ed. 1990).
In the present case, the plaintiff seeks to exercise its subrogation rights and recover the amount it paid to its insured for damage sustained to a motor vehicle. The plaintiff seeks subrogation only to the extent of the property damage sustained. As a result, pursuant to the well reasoned decision in Colonial Penn Ins. Co. v. Burnham, supra, 32 Conn. L. Rptr. 10, this court finds that the plaintiff's claim derives entirely from the insured's right to recover against the statute pursuant to § 52-556, and does not expose the state to additional litigation because the insured has the statutory right to seek that amount. Moreover, this court further agrees with the Colonial Penn court's determination that the use of the word "person" within the statute has not been defined. Therefore, the defendants' motion to dismiss counts two and three of the plaintiff's complaint on these grounds must be denied.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants' motion to dismiss count one of the plaintiff's complaint, and hereby denies the defendants' motion to dismiss counts two and three of the plaintiff's complaint.