Opinion
HHDCV156064247S
11-15-2016
Jessica Micoletti v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Cesar A. Noble, J.
General Statutes § 13a-149, which abrogates municipal immunity for injuries caused by defective highways, mandates that written notice to designated local officials describing the injury and its cause be provided within ninety days of the injury. The motion to dismiss of the Metropolitan District Commission (" MDC") questions whether the proper statutory notice is effected where the plaintiff fails to send it to the appropriate municipal officer or where such an official receives timely notice of the loss from a source other than the plaintiff. For the reasons detailed below the court concludes that such notice is invalid and dismisses the plaintiff's complaint against the MDC.
The plaintiff's complaint asserts claims against both the City of Hartford and the MDC on identical theories of liability. Only the MDC has moved to dismiss the claims against it.
FACTS
This is an action alleging injuries from a highway defect arising under General Statutes § 13a-149. The plaintiff, Jessica Micoletti, alleges in her complaint that she fell on an open hole in a portion of the public highway at the intersection of Market Street and Market Street Extension in Hartford, Connecticut, as a consequence of which she suffered personal injuries. The affidavits provided by the party demonstrate that the plaintiff purported to provide the notice required by § 13a-149 by letter addressed to Dan Rotondo of the MDC. The letter was dated and emailed to Rotondo on July 7, 2015. That same letter was mailed via certified mail/return receipt requested to the address of the MDC. It is undisputed that Rotondo was employed by the MDC as a claims agent. On July 22, 2015, Cynthia Souza, a claims representative working on behalf of the City of Hartford, tendered the defense and indemnity of the plaintiff's claim to John Mirtle, the District Clerk of the MDC.
General Statutes § 13a-149 provides in relevant part: " Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . . for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation."
The plaintiff's complaint was filed on December 7, 2015. On April 26, 2016, the MDC filed a motion to dismiss count two of the plaintiff's complaint for lack of subject matter jurisdiction because the plaintiff failed to comply with the notice requirement of § 13a-149 by failing to provide notice to a statutorily designated official of the MDC. The MDC filed a memorandum of law in support of the motion, along with evidence for the MDC. On May 24, 2016, the plaintiff filed an opposing memorandum of law along with evidence. On June 17, 2016, the MDC filed a reply to the plaintiff's objection to the motion to dismiss. On June 23, 2016, the plaintiff filed a sur-reply to the motion to dismiss. The matter was heard at short calendar on July 25, 2016.
STANDARD
" 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 plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " 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 . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
DISCUSSION
The MDC argues that the plaintiff's failure to comply with the mandatory notice requirement of § 13a-149 deprives the court of subject matter jurisdiction over the claims asserted in count two of the complaint. Specifically, the MDC avers that the plaintiff failed to serve the statutory notice upon a clerk, secretary, or treasurer of the MDC. Furthermore, the MDC argues, even if the proper person did eventually receive the notice, the notice was provided by a third party and not the plaintiff directly, which violates § 13a-149. The plaintiff counters that the notice was sufficient for its intended purpose and falls under the liberal savings clause of § 13a-149. She contends that, even if addressed to the wrong person within the MDC, the notice still reached the proper person within the requisite ninety-day period and met all of the statutory requirements.
Section 13a-149 provides in relevant part that " [a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . . No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation."
" Under the common law, municipalities enjoyed immunity for injuries caused by defective highways . . . This immunity has been legislatively abrogated by § 13a-149, which allows a person to recover damages against a municipality for injuries caused by a defective highway . . . Section 13a-149 provides the exclusive remedy for a person seeking redress against a municipality for such injuries." (Citations omitted.) Martin v. Plainville, 240 Conn. 105, 109, 689 A.2d 1125 (1997).
" [T]he trial court does not have subject matter jurisdiction in a case controlled by § 13a-149 if the plaintiff fails to provide sufficient notice to the defendant municipality." Ortiz v. Metropolitan District, 139 Conn.App. 487, 489, 56 A.3d 952 (2012), citing Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001). " [A]s a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice that meets the statutory requirements. " (Emphasis added; internal quotation marks omitted.) Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003). " The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991).
An examination of the appellate case law discussing the notice requirements under both the statute involved in the present case, § 13a-149, and General Statutes § 13a-144, the equivalent statute authorizing defective highway suits against the state, indicates that notice is valid only if furnished by the plaintiff or plaintiff's representative to one of the individuals specifically authorized to receive notice under the statutes. In Bresnan v. Frankel, 224 Conn. 23, 615 A.2d 1040 (1992), our Supreme Court, in explaining the requirement of § 13a-144 that notice be given to the commissioner of transportation, stated: " The statutory notice must be furnished by the injured parties, either individually or through a representative, to the commissioner." (Emphasis in original; internal quotation marks omitted.) Id., 27.
" To the extent that their language and purpose overlap . . . § § 13a-144 and 13a-149 have always been read in concert." Smith v. New Haven, 258 Conn. 56, 64 n.6, 779 A.2d 104 (2001).
The Appellate Court subsequently relied on Bresnan in Bellman v. West Hartford, 96 Conn.App. 387, 900 A.2d 82 (2006), which, like the present case, involved a claim brought pursuant to § 13a-149. In Bellman, the plaintiff fell in a public parking lot adjacent to the town-owned community center where she worked. Id., 389. The plaintiff's supervisor sent an e-mail to the supervisor of the community center, advising her of the plaintiff's fall. Id., 397. The Appellate Court concluded that the e-mail " failed to comply with the statutory requirements because it was not 'given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation . . .' General Statutes § 13a-149." Bellman v. West Hartford, supra, 398. The court further noted: " The notice was not given to any of the persons designated to receive notice by the clear and unambiguous language of § 13a-149. An insinuation that the proper individual most likely received the notice from another town employee is not sufficient to satisfy the statutory requirement. Information provided by third party sources to the selectman or town clerk, no matter how precise, cannot cure defects in the plaintiff's notice." Id., citing Bresnan v. Frankel, supra, 224 Conn. 27; see also Diamond v. New Haven, Superior Court, judicial district of New Haven, Docket No. 446282 (April 19, 2005, Levin, J.) (2005 WL 1154425) [39 Conn.L.Rptr. 214, ] (" informally serving a secretary or receptionist or other person at [corporation counsel's] office could frustrate or delay the forwarding of the notice").
Nevertheless, our Supreme Court has found notice proper where a defect in identifying the person to whom the notice was to be given amounted to a mere misnomer. In Brennan v. Fairfield, 255 Conn. 693, 768 A.2d 433 (2001), the plaintiff brought an action under § 13a-149 and sent statutory notice to " Madeleine E. Costa, town clerk." Id., 697. The actual town clerk was Marguerite H. Toth, and " [a]ccording to Toth, Costa was not the town clerk and she was not a person known to Toth." Id. In other words, the plaintiff addressed the notice to the town clerk, a statutorily permissible recipient of the notice, but provided an incorrect name. Nonetheless, the notice actually was delivered to the town clerk's office. Id. The Supreme Court held that " the plaintiff delivered the notice to a proper official, namely, the town clerk, pursuant to § 13a-149. The fact that the notice was addressed to Costa, an individual who was not the town clerk, was simply a misnomer that was inaccurate but was sufficient for identification purposes. The statute does not require the plaintiff to include the name of the town clerk or selectman in her notice . . . Furthermore, according to the affidavit of Toth, the town clerk's office did in fact receive the notice." Id., 707.
In the present case, the notice is not addressed to " a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation" as required by § 13a-149. Appended to the MDC's motion to dismiss is an affidavit of John Mirtle. Mirtle avers that the plaintiff sent the notice to Dante " Dan" Rotondo, a claims agent for the MDC, and that this was the only notice regarding the incident which was sent to the MDC.
The parties have not specifically indicated whether the defendant MDC is considered, for purposes of § 13a-149, a town, city, or borough, in which case notice to a selectman or clerk would be required, or a corporation, in which case service to the secretary or treasurer would be required. The parties appear to assume that, had the plaintiff given notice directly to the District Clerk of the defendant, the statute would have been satisfied. That assumption may be unwarranted, however, because " [o]ur Supreme Court has held that the [MDC] is a municipal corporation. Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971)." Ortiz v. Metropolitan District, Superior Court, judicial district of Hartford, Docket No. CV-11-6019762-S, (September 13, 2011, Robaina, J.) (2011 WL 4583813), aff'd on other grounds, 139 Conn.App. 487, 56 A.3d 952 (2012); Ultimately, the court need not resolve that question in light of its conclusion that the second-hand notice the clerk received in the present case was inadequate.
Mirtle's affidavit contains several errors. The first--what is likely a scrivener's error--is his assertion that the letter by the plaintiff's attorney is dated June 5, 2015, when in fact it is dated July 7, 2015. Secondly, he avers that this letter was the " only notice regarding this incident which was sent to the MDC. No other notices were received by the MDC." As indicated below, in contradiction of this assertion, the plaintiff provided in her objection to the motion an email from a claims representative of the City of Hartford which provided notice of the loss together with a tender of the claim to the MDC. Nevertheless, because there is no dispute that the one person, Rotondo, to whom notice was directed by the plaintiff is not an official designated by § 13a-149 as a required recipient of the notice, the discrepancy is not relevant for the purposes of the court's analysis.
In response to the motion to dismiss, the plaintiff has submitted the affidavit of her attorney, Brennen Maki, and several exhibits which the affidavit purports to authenticate. These include Maki's July 7, 2015, letter to Rotondo; a return receipt for his letter to the MDC signed by a Maris Echeverria, presumably an employee of the MDC; a letter dated August 6, 2015, from Cynthia Souza, a claims representative working on behalf of the City of Hartford, in which she denies liability for the plaintiff's injuries that she claims are solely the responsibility of the MDC; and a letter Souza sent to Mirtle, dated July 22, 2015, in which she describes the claim, including the location of the fall and the plaintiff's injuries, and tenders the claim to the MDC on behalf of the City of Hartford. The last document is clearly within the ninety-day statutory limit provided for by § 13a-149.
None of these notices are sufficient under § 13a-149. Neither the plaintiff nor her agent ever sent a notice directly to any of the persons designated to receive notice by the clear and unambiguous language of § 13a-149. As indicated by the court in Bellman v. West Hartford, supra, 96 Conn.App. 398, notice may not come from a third party, even if that third party is within the defendant's organization, nor does communication through an insurer suffice. Cf Zotta v. Burns, 8 Conn.App. 169, 174, 511 A.2d 373 (1986) (" the plaintiff's correspondence, which was forwarded to the defendant's insurance company, failed to meet the requirement of notice to the commissioner" [internal quotation marks omitted]). Moreover, permitting informal service upon the wrong person could frustrate or delay notice and ultimately undermine the purpose of the notice requirement. Diamond v. New Haven, supra, Superior Court, Docket No. 446282 .
Furthermore, the failure of the plaintiff to give notice to the correct person in the present case is not analogous to the mere misnomer in Brennan v. Fairfield, supra, 255 Conn. 693. As previously stated, the notice in Brennan was both addressed and delivered to the correct individual, the town clerk. The only claimed deficiency was that the plaintiff had additionally included an incorrect name for the town clerk. In the present case, by contrast, it is undisputed that the notice was addressed to Rotondo, a claims agent of the defendant, who is not one of the individuals designated to receive notice under § 13a-149. Nor is there any evidence that the plaintiff actually delivered the notice to any of the statutorily designated individuals. Accordingly, this was not a case of misnomer as in Brennan.
The plaintiff nevertheless argues that the purpose of the statute was met because, even if the plaintiff did not deliver the notice to the correct person, other employees of the defendant delivered the notice to the right person within the requisite period. The plaintiff cites to Costello v. Norwalk, Superior Court, judicial district of Fairfield, Docket No. 26 88 34 (April 25, 1991, Katz, J.) (3 Conn.L.Rptr. 509, ); Bliss v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-93-0135308-S (February 9, 1995, D'Andrea, J.) (13 Conn.L.Rptr. 495, ); and Sbriglio v. Wethersfield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-95-05439399 (October 18, 1996, Hennessey, J.) (18 Conn.L.Rptr. 72, ), to support its position. In Costello and Bliss, the notice was addressed to the town clerk instead of the city clerk, although both positions actually existed within the defendant city. In Sbriglio, the plaintiff sent the notice to the town manager, but the court held that the notice was sufficient because the town clerk still received the notice within ninety days. All three of those cases, however, predate, and are inconsistent with, the Appellate Court's declaration in Bellman v. West Hartford, supra, 96 Conn.App. 398, that " [i]nformation provided by third party sources to the selectman or town clerk, no matter how precise, cannot cure defects in the plaintiff's notice."
Lastly, the plaintiff directs the court's attention to the liberal savings clause of § 13a-149. The liberal savings clause provides that " [n]o notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby." (Emphasis added.) General Statutes § 13a-149. Accordingly, by its plain language, the savings clause applies only to inaccuracies in describing the nature or circumstances of the injury; it is silent as to errors in delivery of the notice. That reading of the statute is consistent with our appellate case law. " Under § 13a-149, inaccurate notice is not, by itself, fatal to a plaintiff's claim. The statute contains a savings clause that applies when the notice given by the plaintiff is inaccurate . . . . This savings clause applies only where the information provided in the notice is inaccurate, not where information is entirely absent." (Citations omitted; emphasis altered; internal quotation marks omitted.) Salemme v. Seymour, supra, 262 Conn. 793-94. The savings clause is limited in the types of defects covered. Pratt v. Old Saybrook, 225 Conn. 177, 182-83, 621 A.2d 1322 (1993) (" [T]he legislature provided a liberal saving clause in order to validate the content of a defective notice." [Emphasis added.]). The language of the statute is clear and any relaxation of the notice requirements is a job for the legislature, not the court. See, e.g., Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980) (" We must interpret statutes as they are written"). The liberal savings clause does not apply in this case because the problem is not with the information provided in the notice, but rather the person to whom the notice was addressed and delivered.
CONCLUSION
The plaintiff's action against the MDC is therefore dismissed because the plaintiff has failed to meet the notice requirements of § 13a-149 and the court thereby lacks subject matter jurisdiction.