Opinion
HHDCV166065127S
05-26-2016
Nationwide General Insurance Co. v. Philip Colon, Jr. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#104)
Sheila A. Huddleston, Judge.
The plaintiff, Nationwide General Insurance Company, brought this subrogation action to recover the cost of damages it paid to its insured, Rosita Creamer, as a result of a collision between Creamer's vehicle and a snowplow owned by the defendant, State of Connecticut, and operated by a state employee, Philip Colon, Jr. The plaintiff withdrew count one of its complaint, against Colon, after Colon filed a motion to dismiss on the ground that, as a state employee, he was statutorily immune. The state has now moved to dismiss the second count on the ground of sovereign immunity. The plaintiff objects, asserting that its suit is authorized by General Statutes § 52-556 as construed in the light of General Statutes § 1-1(k).
" [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 doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).
" 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 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
In this case, the question presented is one of statutory construction: does the word " person" in § 52-556 encompass an insurance company exercising contractual rights of subrogation to recover sums paid to its insured? The court therefore takes the facts as alleged in the complaint and construes them in the manner most favorable to the plaintiff.
Any analysis of a statute must begin with the text of the statute. See General Statutes § 1-2z. General Statutes § 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."
The text of § 52-556 authorizes suit only by " a person injured in person or property." It does not define " person." The primary dictionary definition of " person" is " human, individual." Merriam-Webster's Collegiate Dictionary (11th Ed. 2012), p. 924. See also Black's Law Dictionary (8th Ed. 2004), p. 1178 (" person" defined as " 1. a human being.").
The plaintiff argues that, by statute, the term " person" can include corporations. It relies on General Statutes § 1-1(k), which provides: " The words 'person' and 'another' may extend and be applied to communities, companies, corporations, public or private, limited liability companies, societies and associations." Section 1-1(k), however, is a permissive statute, indicating that in appropriate circumstances the word " person" may have a broader meaning than " a human being." The question then is whether an expansive and permissive statutory definition can be applied to interpret a statute in derogation of sovereign immunity. The court concludes that it cannot.
" 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 . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence ." (Emphasis in original; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79-80, 74 A.3d 1242 (2013). " We have held that 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 . . ." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 309, 875 A.2d 498 (2005). " [B]ecause the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes 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 . . . Further, this court has stated that the state's sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed . . ." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 82, 818 A.2d 758 (2003).
The parties have not cited, and the court has not found, any Connecticut appellate decision that specifically addresses the issue presented here. Several trial courts, however, have considered whether the words " any person injured in person or property" --which are used both in § 52-556 and in General Statutes § 13a-144, the statute waiving the state's sovereign immunity for highway defects--should be construed to include insurers bringing actions to recoup benefits paid to insureds. Most have concluded that these words should be construed, consistently with the principles of sovereign immunity stated above, to apply only to human plaintiffs who have suffered a direct injury in person or property. The first such decision, American Manufacturers Mutual Ins. Co. v. State, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-94-0533136-S (November 23, 1994, Sheldon, J.) (13 Conn.L.Rptr. 86, ), applied the " strong presumption against waiver of sovereign immunity" in rejecting an insurer's claim that it was entitled to bring a subrogation action under § 52-556. Following Judge Sheldon's decision, several trial courts have agreed that " person" must be narrowly construed in both § 52-556 and § 13a-144. See Middlesex Mutual Assurance Co. v. Leiper, Superior Court, judicial district of Hartford, Docket No. CV96-0565400 (May 12, 1997, Hennessey, J.) (19 Conn.L.Rptr. 434, ) (adopting Judge Sheldon's reasoning to reject subrogation claim in a § 52-556 action); Allstate Fire and Casualty Ins. Co. v. Commissioner, Superior Court, judicial district of Hartford, Docket No. CV-14-6049355-S (September 4, 2014, Elgo, J.) (58 Conn.L.Rptr. 928, ) (following Judge Sheldon's reasoning in rejecting subrogation claim brought under § 13a-144); State Farm Mutual Automobile Ins Co. v. State, Superior Court, judicial district of Middlesex, Docket No. CV-15-5008478 (November 19, 2015, Vitale, J.) (61 Conn.L.Rptr. 305, ) (same). The court finds the reasoning in these decisions to be persuasive. To the extent that there is any ambiguity in the definition of " person" in § 52-556, principles of sovereign immunity require the court to construe the word to effect the least rather than the most change from the doctrine of sovereign immunity.
The motion to dismiss is therefore granted.