Opinion
No. 460386
July 7, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 130)
Conn. Gen. Stat. § 7-308(b) requires municipalities to assume liability for certain damages caused by their firefighters. The motion for summary judgment now before the court addresses the applicability of that statute to a municipality whose firefighters are employed by a separately incorporated volunteer fire department. For reasons stated below, § 7-308(b) is inapplicable in this context.
The question presented arises in the context of a wrongful death action. The plaintiff, R. William Hunter, is the administrator of the estate of Margaret Ann Hunter. On March 26, 2001, Margaret Ann Hunter was killed in the Town of Prospect ("Town") when her vehicle collided with another vehicle driven by the named defendant, Shawn P. LaJoie. Lajoie was a volunteer firefighter in Prospect belonging to the Volunteer Fire Department of Prospect, Inc. ("VFDP") and was allegedly responding to an incident at the time of the collision.
On January 29, 2002, the plaintiff commenced this action against a number of defendants, including Lajoie and the Town. On May 1, 2002, the VFDP was added as a defendant. The plaintiff's second amended complaint consists of five counts, of which only one count is in question here. Count Three alleges that, "Pursuant to Section 7-308 of the General Statutes, the defendant Town of Prospect is liable for indemnification of any liability assessed against Shawn P. Lajoie in this case, including any damages assessed under Counts One and Two."
The motion for summary judgment now before the court was filed by the Town on April 16, 2003. The motion contends that "LaJoje was not an employee of the Town of Prospect at the time of the subject accident and, therefore, the Town has no statutory duty to indemnify pursuant to C.G.S 7-308." The motion was argued on July 6, 2004.
It is undisputed that, at the time of the accident, Lajoie was a member of the VFDP. The VFDP is an incorporated entity distinct from the Town itself. (The VFDP, which is separately insured, is, as mentioned, an additional defendant in the case.) Lajoie was not employed by the Town as either a paid or volunteer firefighter or as a volunteer ambulance member. There is no suggestion that Lajoie was either a paid firefighter or volunteer ambulance member. The question is whether his capacity as volunteer firefighter had a sufficient nexus to the Town to implicate § 7-308.
As described above, the plaintiff's sole cause of action against the Town is set forth in Count Three of his second amended complaint. That count is entirely grounded on § 7-308. The parties differ not on the facts but on the proper construction of the statute just cited. A brief description of the statute will be helpful.
Sec. 7-308 consists of two subsections. Subsection (a) is definitional. It provides, inter alia, that, "As used in this Section, `municipality' shall have the meaning ascribed to it by Section 7-314." Subsection (b) substantively provides that, "Each municipality of this state . . . shall pay on behalf of any . . . volunteer fireman . . . of such municipality all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman . . . by law for damages to person or property, if the fireman . . . at the time of the occurrence, accident, injury or damages complained of, was performing fire . . . duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman . . . in the discharge of such duties."
Conn. Gen. Stat. § 7-314 provides that the word "municipality" "includes each town . . . or any other municipal corporation . . . upon which is placed the duty of, or which has itself assumed the duty of, protecting its inhabitants from loss by fire." It is common ground that both the Town and the VFDP are "municipalities" for purposes of this definition.
There is no question, for purposes of this motion, that the VFDP is responsible under § 7-308(b) for damages caused by Lajoie while negligently performing fire duties. The question presented is whether the Town is additionally responsible for such damages under the same subsection. The plaintiff's contention that such additional responsibility exists is defeated both by the text of § 7-308(b) and by pertinent Appellate Court precedent.
The text of § 7-308(b) imposes liability upon a municipality only for the acts of a fireman "of such municipality." (Emphasis added.) The evidence establishes that Lajoie was not a firefighter "of" the Town. He was, instead, a firefighter "of" the VFDP.
Tryon v. Town of North Branford, 58 Conn. App. 702, 755 A.2d 317 (2000), confirms the correctness of this approach. Tryon explains that a claim for indemnification under § 7-308 must fail if the plaintiff fails to offer proof of an "employment relationship" between the firefighter and the municipality in question. 58 Conn. App. at 718. Because the evidence submitted here establishes that no such "employment relationship" existed between Lajoie and the Town, the plaintiff's § 7-308 claim must fail.
The plaintiff advances two additional arguments, neither of which is persuasive. The plaintiff first relies on Conn. Gen. Stat. § 7-314a(e), which provides that, "Any member of a volunteer fire company . . . shall be entitled to all benefits pursuant to this Section and shall be construed to be an employee of the municipality in which his fire company . . . is located." In spite of the potentially broad sweep of the language just quoted, the plaintiffs claim that § 7-314a(e) makes Lajoie a municipal employee for purposes of § 7-308(b) cannot be sustained in light of Going v. Cromwell Fire District, 159 Conn. 53, 267 A.2d 428 (1970). Going holds that "an injured volunteer firefighter does not come within the terms of the concurrent employment provisions of § 3-310." Wislocki v. Town of Prospect, 224 Conn. 479, 482, 619 A.2d 842 (1993). As Going explains, § 7-314a was addressed to the "entirely different" problem of "upgrading benefits for volunteer firemen equated to those in the Workmen's Compensation Act." 159 Conn. at 58-59. The title of § 7-314a confirms that that Section is intended to address "[d]eath, disability and injury benefits." Sec. 7-314a has no applicability to the very different problems addressed by § 7-308.
The plaintiff finally claims that the Town is liable for the acts of Lajoie under principles of agency. Count Three of the second amended complaint fails to mention such a theory. The sole theory of liability addressed in that count is the Town's asserted statutory liability under § 7-308. As mentioned, the Appellate Court has explained that evidence establishing an "employment relationship" is necessary to implicate the statute in question. Tryon v. Town of North Branford, supra, 58 Conn. App. at 718. Under these circumstances, the plaintiff's agency theory cannot succeed.
The motion for summary judgment is granted.
Jon C. Blue Judge of the Superior Court