Opinion
HHDCV166071793
06-21-2017
Sandra Harvey, Administratrix of the Estate of Isiah Boucher v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is the defendants' motion to dismiss the complaint filed by the plaintiff, Sandra Harvey, Administratrix of the Estate of Isiah Boucher. Harvey has brought this medical malpractice/wrongful death action against the defendants, State of Connecticut Department of Correction (DOC) and the University of Connecticut Health Correctional Managed Health Care (HCMC) on behalf of the estate of the decedent, Isiah Boucher (Boucher). On July 16, 2015, Boucher, prior to his passing, was granted permission by the Claims Commissioner to sue the state pursuant to General Statutes, § § 4-141 through 4-165. Although the plaintiff was required to file the complaint within one year of the date permission was granted, the plaintiff commenced this action on September 26, 2016. Arguing that the action is untimely, the defendants move to dismiss the complaint.
In this case, the plaintiff argues that due to the death of the decedent, she has two years from the date of death to bring the action pursuant to General Statutes § 52-555. For the following reasons, this court disagrees and grants the motion to dismiss.
General Statutes § 52-555(a) provides, in relevant part: In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
" 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); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
" 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), citing Practice Book § 143 (now § 10-31). " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501.
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
" In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so. [A] plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner . . . General Statutes § 4-160(a) provides as follows: 'When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.' When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim . . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions." (Citation omitted; internal quotation marks omitted.) Id., 351-52.
" [S]tatutes in derogation of sovereign immunity should be strictly construed . . . Where 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.) Id., 349. If authorization to bring suit is given by the claims commissioner, there are limitations as to when and how suit must be brought. Specifically, General Statutes § 4-160(d) provides in relevant part: " No such action [authorized by the claims commissioner] shall be brought but within one year from the date such authorization to sue is granted ." (Emphasis added.). Statutorily provided time limitations on actions in derogation of common law are to be strictly observed. " [When] . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation . . . but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time . . . and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
Courts have construed similar statutes strictly and narrowly. In Calvert v. University of Connecticut Health Center, 142 Conn.App. 738, 68 A.3d 107 (2013), the plaintiff brought suit against the state for medical malpractice under § 4-160(b). The Appellate Court held that the case was properly dismissed, as the plaintiff had failed to seek authorization to bring the claim. The plaintiff, invoking the doctrine of futility, argued that seeking permission from the commissioner to bring suit was essentially a meaningless step as the language of § 4-160(b) indicated that authorization shall be granted if a certificate of good faith is submitted with the plaintiff's application. The Appellate Court, in rejecting this argument, held that: " [W]e conclude that the filing requirement for waiver of sovereign immunity is definitely not a 'step that has no value.' It is the step that the legislature has mandated and it gives the claims commissioner the opportunity to deny the claim for untimeliness, as the present case shows." Id., 743-44. Similarly, in Bloom v. Dept. of Labor, 93 Conn.App. 37, 888 A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d 992 (2006), the plaintiff filed an appeal of the denial of his unemployment benefits with the Superior Court. The appeal was dismissed. Under the statutory scheme in that case, he could have taken a timely appeal to the Appellate Court, but failed to do so. Instead, the plaintiff commenced another action at the Superior Court seeking an order for injunctive relief to hold a new hearing on his unemployment compensation claim. The Appellate Court, in dismissing the action for failing to comply with the procedural provisions of the controlling statutory scheme, held that " [the] waiver of sovereign immunity expired when the plaintiff failed to pursue an appeal to this court from the [decision of the trial court]." Id., 41.
Judges of the Superior Court have dealt with this specific issue slightly more frequently. Most relevantly, in Colon v. Buchanan, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-07-6000945-S, (October 14, 2008, Eveleigh, J.), the plaintiff brought a cause of action over a year after receiving authorization to bring suit. The court, in dismissing the action for lack of subject matter jurisdiction, held: " The requirement, under . . . § 4-160(d), that any suits against the state be brought within one year from the date of the authorization is a jurisdictional prerequisite to the filing of a suit for money damages against the State and it is a requirement that cannot be waived. The permission to sue the State granted by the Claims Commissioner is valid for a period of one year. If suit is not brought within the one-year period, the waiver of sovereign immunity expires. In the present case, the waiver of sovereign immunity had expired by the time the plaintiff brought this action. Therefore, this suit for money damages against the State is barred by the doctrine of sovereign immunity." Id. The other provisions of Chapter 53 concerning time limitations have been construed similarly. See Pedraza v. State, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-14-6051632-S, (August 9, 2016, Huddleston, J.) (court dismissed action when plaintiff seeking wrongful death action had filed notice of claim outside one-year period under § 4-148[a] in which suit must be brought after cause of action accrues).
These cases follow the rule that the time limitations of statutes in derogation of common law must be strictly construed and followed. See State v. Lombardo Bros. Mason Contractors, Inc., supra, 307 Conn. 412. Consequently, the failure to bring suit within a year after receiving authorization to sue is an error that deprives the court of subject matter jurisdiction. See Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003).
With regard to exceptions or tolling of this time period, there is no language found within Chapter 53 providing such a mechanism. The only language that mentions tolling is found in § 4-160(d), and it provides in relevant part: " With respect to any claim presented to the Office of the Claims Commissioner for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization is granted."
In Lagassey v. State, 50 Conn.Supp. 130, 913 A.2d 1153 (2005), aff'd, 281 Conn. 1, 914 A.2d 509 (2007), the court analyzed and applied the § 4-160(d) tolling provision. The plaintiff in that case had brought a suit for wrongful death within the time period required by § 4-160(d), but had done so outside the two-year statute of limitations under General Statutes § 52-555(a), the wrongful death statute. The court in Lagassey held that the tolling provision only operated to suspend the statute of limitations from running while the claim was being considered by the commissioner; it did not extend or start the period anew. Id., 138-39. The plaintiff in the Lagassey case complied with the § 4-160(d) one-year limitation, but failed to do so with regards to the underlying cause of action. As Lagassey made clear, § 4-160(d) only operates to toll the statute of limitations on the underlying cause of action; it does not affect the one-year period in which suit must be brought after authorization to sue is given. There is no other language in chapter 53 that provides exceptions or tolling as to the § 4-160(d) period to bring suit. Because statutes in derogation of sovereign immunity are to be strictly construed, the one-year limitation of § 4-160(d) must be strictly enforced. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 350.
In light of the foregoing, this court concludes that the plaintiff, in attempting to bring a statutory cause of action against the state, must comply with two time limitations: (1) the one-year limitation to bring suit after authorization is given to sue; and (2) the original statute of limitations on the underlying cause of action. Failure to comply with either deprives the court of subject matter jurisdiction and is grounds for dismissal. See, e.g., Colon v. Buchanan, supra, Docket No. X02-CV-07-6000945-S,; Lagassey v. State, supra, 50 Conn.Supp. 130. Given that the plaintiff's authorization to sue ended on July 16, 2016 and the plaintiff commenced this action after that date, this court lacks subject matter jurisdiction.
Moreover, this court questions whether the plaintiff's characterization of this lawsuit as a wrongful death action is a proper gloss and/or is properly brought before this court when the action approved by the Commissioner was a medical malpractice claim. If the date of injury was the date of malpractice, i.e., June 18, 2013, then the applicable statute of limitations would have run on June 18, 2015, but for the tolling of that statute of limitations by operation of § 4-160(d) pursuant to Lagassey . In a thoughtful analysis, the court (Schuman, J.) held that a distinctly different claim not presented to the Claims Commissioner but raised " as an afterthought" was barred by sovereign immunity. State v. Burgess, 50 Conn.Supp. 271, 282, 920 A.2d 383, 390 (Jan. 8, 2007, Schuman, J.). Thus on one hand, if this is not a distinctly different claim as argued by the plaintiff, since the underlying malpractice was in fact before the Claims Commissioner, then the earlier statute of limitations should govern. If it is a distinct claim, warranting the two-year statute of limitations for wrongful death as advocated by the plaintiff, then arguably this is a distinctly different action which would require review before the Claims Commissioner. Either way, this court is without subject matter jurisdiction.
The motion to dismiss is granted.