Opinion
No. CV 09 5033126 S
April 30, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#104)
This is an action against the state of Connecticut for money damages for personal injuries alleged to have been caused by a state employee's negligent operation of a backhoe. The plaintiffs, George and Lisa Beaupre, commenced this action against the defendant, the state of Connecticut, department of mental health and addiction services, on September 22, 2009.
On October 19, 2009, the court allowed Mr. Beaupre's employer, Lamore's Enterprises, Inc., to intervene to seek recovery for workers' compensation benefits allegedly paid to Mr. Beaupre. For purposes of this decision, the court's use of "plaintiffs" is intended to refer only George and Lisa Beaupre.
The first count of the amended complaint alleges the following. On October 10, 2007, George Beaupre, an employee of Lamore's Gulf Station, reported to Cedarcrest Hospital to retrieve and tow a sander. Mark Tracey, a state employee, attempted to load the sander onto the tow truck with a Backhoe Loader. While loading the sander, Tracey allowed his foot to come off the backhoe's clutch, causing it to lurch forward and strike Mr. Beaupre in the head. Mr. Beaupre has suffered serious injuries as a result of Tracey's negligence. The second count of the amended complaint alleges that Lisa Beaupre, Mr. Beaupre's wife, has been, and will continue to be, deprived of her husband's love, aid, comfort, society and consortium as a result of Tracey's carelessness.
The plaintiffs bring this action pursuant to General Statutes § 52-556, which, in general terms, waives the state's sovereign immunity from suit to negligence actions involving state owned motor vehicles. The state filed a motion to dismiss, with an accompanying memorandum of law, on November 20, 2009. The plaintiffs filed an objection to the motion on January 20, 2010. The state filed a reply on February 3, 2010. The parties were heard at short calendar on February 8, 2010.
The state filed a supplemental memorandum of law in support of its motion on December 30, 2009. The memorandum urges the court to dismiss the complaint on the ground that the plaintiffs have a viable claim before the claims commissioner. The court does not need to address this argument for the reasons stated below.
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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
"[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 Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "It is well settled in Connecticut that, under the doctrine of sovereign immunity, the state cannot be sued unless, by legislative enactment, it consents . . . General Statutes § 52-556 creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity." (Citation omitted.) Rivera v. Fox, 20 Conn.App. 619, 622, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).
The state moves to dismiss the amended complaint on the ground that the doctrine of sovereign immunity deprives the court of subject matter jurisdiction over this action. Specifically, the state argues that § 52-556 does not apply because (1) the backhoe was not a "motor vehicle" as defined in General Statutes § 14-1(53); and (2) he was not "operating" the backhoe as a motor vehicle when the accident occurred. Accordingly, the state argues that because the state has not waived its sovereign immunity in this case, and the plaintiff has not received permission to sue the state from the claims commissioner, the action is barred by sovereign immunity. In support of its motion, the state submits an affidavit from Tracey, dated November 19, 2009.
The plaintiffs respond that the question of whether a backhoe is a "motor vehicle" or whether it was actually "operated" as required by § 52-556 is a question of fact and cannot be decided by a motion to dismiss. The plaintiffs further argue that the backhoe falls within the definition of "motor vehicle" because it was propelled by "nonmuscular power" and was used to move people and objects. Moreover, they assert that Tracey was "operating" the backhoe because he was engaging the foot clutch at the time of the accident. In support of their objection, the plaintiffs submit the following: an affidavit of James DiMatteo, an experienced construction worker, dated January 15, 2010, and incident reports from the department of mental health and addictions services.
The issue of whether the backhoe is a "motor vehicle" or whether it was actually "operated" requires the court to construe § 52-556, and is therefore, primarily a question of law. See Wiseman v. Armstrong, 269 Conn. 802, 809, 850 A.2d 114 (2004) (the meaning of a statutory term presents a question of law). Section 52-556 provides: "Any 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."
Although § 52-556 does not define "motor vehicle," a statutory definition of motor vehicle is found in Title 14 of the General Statutes, which governs the use of motor vehicles on public highways. Section 14-1(53) defines a "motor vehicle" as "any vehicle propelled or drawn by any nonmuscular power, except . . . special mobile equipment as defined in subsection (i) of section 14-165 . . . and any other vehicle not suitable for operation on a highway . . ." (Emphasis added.)
Section 14-1(53) appears to contain a scrivener's error because it refers to subsection (i) of section 14-165. Section 14-165 no longer contains lettered subsections by virtue of the passage of P.A. 02-70, which redesignated subsections (a) to (l) as subdivisions (1) to (12). This error does not have any impact on the substantive claims in this case.
Even though the state recognizes that the backhoe in this case is propelled nonmuscular power, it argues that the backhoe does not qualify as a "motor vehicle" because it is "special mobile equipment." General Statutes § 14-165(9) defines "special mobile equipment" as "a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including, but not limited to, ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, street sweepers, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment. The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached . . ."
In support of its position, the state points out that the backhoe was not properly equipped to travel on the highway, as required by the General Statutes and by the regulations of the department of motor vehicles. For instance, the defendant argues that, because the backhoe did not have stop lights, a fender or rear parking lights on one side, it was not designed for the transportation of persons or property on the highway. According to the state, it follows, therefore, that backhoes are not "motor vehicles."
The plaintiffs, on the other hand, assert that a "backhoe" cannot be classified as "special mobile equipment" because the legislature did not specifically include that term in § 14-165(9). They further argue the backhoe's failure to comply with motor vehicle statutory and regulatory requirements only demonstrates that it is "poorly equipped." The plaintiffs also contend that it is significant that the backhoe was registered with a Connecticut license plate and insured by the state. They maintain, therefore, that this is evidence that it is indeed a motor vehicle.
There is no appellate authority that resolves whether a backhoe is a motor vehicle for purposes of § 52-556. Consequently, to determine its proper classification, this court's analysis of the relevant statutes is guided "by the 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 [s]tatutes 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 . . . [When] there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity." (Emphasis added; internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 11, 950 A.2d 1247 (2008).
The issue of whether a backhoe is a motor vehicle pursuant to § 14-1 was before the court in Dias v. Adams, 189 Conn. 354, 356-57, 456 A.2d 309 (1983). The court, however, decided the case on other grounds and, therefore, declined to resolve this issue. Id., 357
A strict construction in the state's favor of the statutory language compels a conclusion that a backhoe does not qualify as a motor vehicle. Section 14-1(53) excludes from the definition of a motor vehicle "any . . . vehicle not suitable for operation on a highway." As the state correctly points out, a backhoe is not suitable for operation on a highway. For example, Tracey's affidavit reveals that this backhoe "was not equipped with signal lights or with rear view mirrors or with a windshield." Moreover, it was not equipped with stop lights and the wheels lacked suspension. Furthermore, there is no evidence that suggests that this particular backhoe is atypical. Accordingly, it is illogical to conclude that a vehicle that is designed without these basic safety features is suitable for operation on a highway.
The plaintiffs do not dispute Tracey's assertions. Therefore, the court may properly consider the facts contained in his affidavit. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts . . ." (Citations omitted; internal quotations marks omitted.) State v. Conboy, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
In addition, a backhoe loader also falls within the category of "special mobile equipment" and is therefore excluded from the definition of "motor vehicles." Section 14-165(9) includes vehicles that are "not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway." The statute then lists vehicles that fall within that category. The statute, however, is clear that the list is not exhaustive. Consequently, there is no merit to the plaintiffs' argument that a backhoe cannot qualify as "special mobile equipment" because it is not specifically enumerated. To the contrary, the nature of the vehicles that are listed suggests that backhoes are included within the definition of § 14-165(9). For instance, a backhoe is defined as a "slow moving excavation machine which has a hydraulic powered shovel that is used for digging. Backhoes are primarily used for excavating pits and ditches." Modern Dictionary for the Legal Profession (4th Ed. 2008). See also Webster's Collegiate Dictionary (10th Ed. 1993) (defining backhoe as "an excavating machine . . . Thus, they fall under the same category as "ditch-digging apparatus." Although it may incidentally travel over a highway, the primary purpose of a backhoe is to serve as construction machinery. See, e.g., Chamberland v. LaBonte, 99 Conn.App. 464, 474, 913 A.2d 1129 (2007) (backhoes fall within the category of contractor's mobile equipment designed primarily for off road use, although not specifically identified in relevant statute). Consequently, backhoes are special mobile equipment, and, by statute, cannot be defined as "motor vehicles."
This conclusion is supported by a legislative amendment to General Statutes § 31-293a that followed on the heels of the Connecticut Supreme Court's decision in Dias v. Adams, 189 Conn. 354, 358, 456 A.2d 309 (1983). In Dias, the court held that the negligent use of a backhoe shovel did not constitute the operation of a motor vehicle for purposes of § 31-293a. That statute provides an exception to the general rule that the Connecticut's Workers' Compensation Act is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment. Colangelo v. Heckelman, 279 Conn. 177, 183-84, 900 A.2d 1266 (2006). Pursuant to § 31-293a, an employee may sue a fellow employee based on his negligence in the operation of a motor vehicle. For purposes of § 31-293a, motor vehicles is defined by § 14-1.
Although the Supreme Court declined to resolve the issue of whether a backhoe was indeed a motor vehicle, it held that the negligent employee could not have been "operating" a motor vehicle because the shovel, and not the backhoe itself, was in motion. Dias v. Adams, supra, 356-57. Therefore, the court held that judgment for the defendant was appropriate. Id. However, following the decision, there remained some doubt with respect to whether the court would have held otherwise if the backhoe was actually in motion.
The legislature resolved this doubt. "Shortly after the issuance of [the] opinion in Dias in 1983, the legislature amended § 31-293a by modifying the definition of the term `motor vehicle' for purposes of that statute. See Public Acts 1983, No. 83-297 ( P.A. 83-297). In particular, P.A. 83-297 provided in relevant part that contractor's mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not `motor vehicles' if the claimed injury involving such equipment occurred at the worksite." (Internal quotation marks omitted.) Colangelo v. Heckelman, supra, 279 Conn. 186-87. The appellate court has subsequently determined that backhoe loaders fall within this category of vehicles "designed for use principally off public roads." "[A]s a result of the enactment of [ P.A. 83-297], § 31-293a now excludes backhoes from the class of motor vehicles that may give rise to liability if the claimed injury involving such equipment occurred at the worksite . . ." (Internal quotation marks omitted.) Chamberland v. LaBonte, supra, 99 Conn.App. 474.
The amendment to § 31-293a suggests the legislative intent to exclude construction equipment from the category of "motor vehicles." Admittedly, § 52-556 was not similarly amended. However, the statutes are analogous in that both rely on § 14-1 for the definition of motor vehicle, and both are exceptions to strict immunity from suit. Therefore, the amendment supports the conclusion that the legislature did not intend to classify a backhoe as a motor vehicle for purposes of § 52-556. It is, therefore, unnecessary to address the defendant's second argument that the backhoe was not being operated as such. Accordingly, sovereign immunity bars this action and the court grants the motion to dismiss.
Judgment shall enter accordingly.