Opinion
No. CV 08-5019001
November 14, 2008
MEMORANDUM OF DECISION
I.
The plaintiff, Empire Paving, Inc., filed a complaint on April 11, 2008, alleging in a single count that the defendant, the department of transportation, breached an implied warranty of a contract between the plaintiff and the defendant for the widening of Route 66 in Middlefield, State Project No. 81-80 (project).
In its complaint, the plaintiff alleges the following facts. On or about June 2003, the plaintiff, entered into a contract with the department of transportation for the project. The contract called for the plaintiff, as a part of the project, to perform work at the property located at 228 Meriden Road in Middlefield that is owned by James DiCaprio. The plaintiff performed all the work at the DiCaprio property in compliance with the defendant's plans and specifications. All of the plaintiff's work at the DiCaprio property was inspected, completed, approved and accepted by the defendant. In July 2007, DiCaprio sued the plaintiff alleging that the work performed on his property was defective. This action, DiCaprio v. Empire Paving, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 07 5002636, is still pending.
The plaintiff further alleges the following: The defendant's contract included an implied warranty as to the accuracy and suitability of the plans and design specifications that it provided. Any defects that may exist in the work performed at the DiCaprio property are due to the defendant's plans and specifications for the work because the plaintiff performed its work in compliance with the defendant's plans and specifications. To the extent that the contract plans and specifications are defective, the defendant has breached the implied warranty as to the accuracy and suitability of the plans and design specifications. The plaintiff seeks money damages, including interest and costs, for its alleged injuries sustained in defending the pending action brought against it by DiCaprio and any judgment rendered against it in that action.
On June 12, 2008, while a motion to consolidate was pending, the defendant filed, along with a supporting memorandum, a motion to dismiss the complaint on the ground of sovereign immunity. The plaintiff filed a memorandum in opposition on July 7, 2008, to which the defendant replied by memorandum on August 13, 2008.
II.
"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). "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.) Id., 211.
The Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004). "[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.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "[I]n the absence of legislative authority. [the Supreme Court has] declined to permit any monetary award against the state or its officials [or agents]." (Internal quotation marks omitted.) Bloom v. Gershon, supra, 271 Conn. 107.
III. Sovereign Immunity
The plaintiff argues that this suit is brought under an exception to sovereign immunity created by General Statutes § 4-61(a). It contends that this action, as alleged in the complaint, arises directly out of the contract between the plaintiff and defendant and consequently constitutes a "disputed claim" under said contract within the meaning of the statute. Thus, according to the plaintiff, the legislature has explicitly waived sovereign immunity in this case.
Section 4-61(a) provides in relevant part, "[a]ny person, firm or corporation which has entered into a contract with the state, acting through any of its departments . . . for the design, construction, construction management, repair or alteration of any highway . . . may, in the event of any disputed claim under such contract . . . bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined . . ."
"[W]hen the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions . . . Where 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 . . . 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 . . . Thus, a party who seeks to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of § 4-61." (Citation omitted; internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., 287 Conn. 1, 8-9, 946 A.2d, 1219 (2008).
The defendant argues that because the action between the plaintiff and DiCaprio is still pending, the plaintiff does not have a "disputed claim" under the contract and does not fit precisely within the reach of § 4-61(a). The defendant cites Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 680 A.2d 1321 (1996), for the proposition that the state has sovereign immunity under such circumstances. The plaintiff responds that Peabody does not apply to this action because it is factually distinguishable.
In Peabody, a general contractor, working under a highway contract with the state department of transportation, was sued for breach of a contract by a subcontractor. Id., 96. The general contractor then impleaded the department of transportation pursuant to General Statutes § 52-152a. Id. In the third-party complaint, the general contractor denied liability to the subcontractor but alleged that, if it were found liable to the subcontractor, the department of transportation should be responsible for any judgment. Id., 97-98. The department of transportation moved to dismiss on the ground of sovereign immunity, claiming that its immunity was not waived because the third party complaint was not a "disputed claim" under the state contract for the purposes of § 4-61(a). Id., 100.
The Supreme Court agreed with the department of transportation: "[W]e are persuaded that a general contractor who has entered into a contract with the state cannot bring a third party action against the state based on the mere prospect that the contractor may be liable to a subcontractor at some point in the future. That scenario does not constitute a disputed claim by the contractor against the state." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 103. The Peabody court based its holding on the plain language of § 4-61(a), specifically the language stating that a party seeking to sue the state must have "disputed claims under [its] contract" with the state. Id., 102-03. The court concluded that "disputed claims" did not expressly include contingent claims: "[T]he legislature did not, as it has done in the context of private sector claims, allow suits invoking the contingent liability of parties who `may be liable' at some point in the future." Id., 102. (contrasting § 4-61(a) with General Statutes § 52-102a) The court also noted that its conclusion was supported by the legislative history of § 4-61, which indicated a "narrow and limited purpose for the exception to sovereign immunity." Id., 103.
The plaintiff contends that Peabody is factually distinguishable because the underlying action was between a general contractor and a subcontractor, and the court was concerned that the subcontractor, who would not otherwise be able to sue the state due to sovereign immunity, would be able to indirectly sue the state through the general contractor. This concern, the plaintiff argues, is not warranted in the present case because the plaintiff has no contractual relationship with DiCaprio, and, therefore, there is no possibility that a subcontractor would be indirectly suing the state.
This factual distinction is irrelevant. Though the Peabody court did emphasize that permitting contingent claims under § 4-61(a) would have the perverse result of allowing a "subcontractor to do indirectly what it could not do directly," the court's holding was based on the statutory interpretation of § 4-61, not on the existence of a contractual relationship between a subcontractor and a general contractor in the underlying action. Id., 104. Based on that statutory interpretation, Peabody does not allow any contingent claims to be brought against the state under § 4-61.
Given the allegations in the complaint, this action is entirely contingent on the outcome of the underlying lawsuit. Specifically, the plaintiff alleges that it "performed all its work in compliance with [the defendant's] plans and specifications, [and] any defects that may exist are due to [the defendant's] plans and specifications [and] to the extent that the Contract plans and specifications are defective [the defendant] has breached the implied warranty . . . in the Contract." (Emphasis added.) Based on the foregoing allegations, the plaintiff's complaint is predicated on a finding in the underlying action that defects exist, and only if they exist are the defendant's contract plans allegedly defective. Consequently, the plaintiff's claims are contingent and do not constitute "disputed claims" for the purposes of waiving sovereign immunity pursuant to § 4-61(a). Accordingly, the defendant's motion to dismiss on the ground of sovereign immunity is granted.
IV. Ripeness
The fact that the plaintiff's action against the defendant is entirely contingent on the outcome of a pending lawsuit raises another issue of subject matter jurisdiction: ripeness. "An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates this court's subject matter jurisdiction . . ." (Citation omitted; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 347, 844 A.2d 211 (2004). "[R]ipeness is a sine qua non of justiciability . . ." (Internal quotation marks omitted.) Id. "[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and the court, therefore] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire" (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004).
The present case involves a contingent claim that, if some future event happens, there may be liability on the part of the defendant. As stated above, the plaintiff's cause of action alleges that the defendant is liable for any defects in the work done on the project to the extent that its plans were defective. No defects will be found to exist, however, unless DiCaprio's action against the plaintiff is resolved in favor of DiCaprio, an event which may never occur.
It should be noted that ripeness was not a concern in Peabody because the plaintiff chose to implead the defendant in the underlying action pursuant to General Statutes § 52-102a, and that statute explicitly permits claims that are not ripe. Section 52-102a allows "[a] defendant in any civil action" to implead "a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." (Emphasis added.) "The purpose and effect of the [emphasized] words is to accelerate the accrual of a right to assert a claim against the impleaded person . . ." Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968).
Rather than impleading the defendant in the underlying action filed by DiCaprio, the plaintiff has chosen to sue the defendant in this entirely separate action. Under these circumstances, the impleader statute is inapplicable, and this action is subject to the ripeness doctrine. See Tri-State Contracting, LLC v. Ferguson McGuire, Inc., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV03 0080812 (September 10, 2003, Sferrazza, J.) (35 Conn. L. Rptr. 453) (dismissing an action for damages by an insured against its insurance agent on the ground of ripeness because the claims were contingent on an underlying action for declaratory judgment as to whether coverage existed under an insurance policy). It is, therefore, fatal to the plaintiff's case that its cause of action, as pleaded, remains contingent upon the outcome of another controversy.
For the foregoing reasons, this action also is dismissed on the ground of ripeness.