Opinion
CV156054959S
11-10-2015
William O'Brien v. City of New Haven
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS #102
Brian T. Fischer, J.
On June 1, 2015, the plaintiff, William O'Brien, filed a complaint against the defendant, the city of New Haven, alleging the following facts. On or about November 22, 2010, the plaintiff was sued in his official capacity as the defendant's assessor by Tax Data Solutions, LLC (Tax Data). Upon commencement of the action by Tax Data (Tax Data action), the plaintiff contacted the defendant by way of the mayor and the defendant's counsel, Victor Bolden, and requested that the defendant provide the plaintiff with legal representation in the Tax Data action. The defendant refused to provide legal representation, but Bolden stated in a letter to the plaintiff dated December 22, 2010, that in accordance with the General Statutes § 7-101a(b), if no judgment was rendered against the plaintiff, then the defendant would indemnify him from financial loss and expense, including legal fees and costs. The plaintiff, therefore, hired private counsel to defend him in the Tax Data action, and he expended money for the legal services and costs associated with his defense. On January 15, 2015, the court rendered a judgment in favor of the plaintiff and, on April 24, 2015, the plaintiff filed a notice of claim with the defendant's town clerk, pursuant to § 7-101a(d), asking for reimbursement of his legal fees and costs. The defendants refused, neglected, or failed to pay his legal fees and costs. As a result, the plaintiff has been damaged and has incurred attorneys fees and costs.
General Statutes § 7-101a provides in relevant part: " (b) In addition to the protection provided under subsection (a) of this section, each municipality shall protect and save harmless any such municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for a malicious, wanton or wilful act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act . . . " (d) No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued."
On July 14, 2015, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the plaintiff had not provided the defendant with timely notice of the indemnification claim. The defendant submitted a memorandum of law in support of this motion on August 19, 2015, and the plaintiff filed an objection to the defendant's motion to dismiss, claiming that notice was provided in accordance with the applicable statute. The matter was heard at short calendar on September 14, 2015.
DISCUSSION
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " [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).
" It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014). " [I]f 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] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . .., or only evidence that fails to call those allegations into question . .., the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
In the present action, the defendant argues that the plaintiff filed his notice of claim beyond the six-month period required by § 7-101a(d) because the time for filing the notice began when the Tax Data action was initiated against the plaintiff. In response, the plaintiff counters that the six-month period to file notice begins when his cause of action for indemnification accrues. The plaintiff argues that the action for indemnification accrued when he received a final judgment in the Tax Data action.
In support of its argument, the defendant cites to a case in its brief titled " Conley v. Montese ." The court believes the defendant meant to cite Cooney v. Montes, Superior Court, judicial district of Hartford, Docket No. CV-90-0372152-S, (May 18, 1992, O'Neill, J.) (6 Conn. L. Rptr. 442, 443). The facts of
" By its terms, General Statutes § 7-101a(a) . . . protects municipal officers and full-time municipal employees from financial loss and expenses arising out of damage suits . . ." Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985). Section 7-101a(a) provides in relevant part: " Each municipality shall protect and save harmless any municipal officer . . . from financial loss and expense, including legal fees and costs . . . arising out of any claim . . . by reason of alleged negligence . . . on the part of such officer or such employee while acting in the discharge of his duties." The statute also provides for indemnification to a municipal employee of legal fees and costs incurred from defending a claim that arose while he was acting in the discharge of his duties. See § 7-101a(b); see also Vibert v. Board of Education, 260 Conn. 167, 173-74, 793 A.2d 1076 (2002).
Before a municipality must indemnify an employee, the employee must provide it with due notice, as required by § 7-101a(d). Section 7-101a(d) provides: " No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued ." (Emphasis added.) " In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury." (Citation omitted; emphasis added.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989). " The true test is to establish the time when the plaintiff first could have successfully maintained an action." (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 609, 767 A.2d 1202 (2001).
" The law favors rational and sensible statutory construction . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results." (Citations omitted; internal quotation marks omitted.) Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). In Orticelli v. Powers, supra, 197 Conn. 14, the Supreme Court discussed whether § 7-101a(d) has a broad application, specifically whether the notice statute could apply to more than the employee's indemnification action. The court held: " The phrase 'or employee' in § 7-101a(d) does not broaden the application of the time limitation provision to the direct action brought against a municipal employee, because such an action is not one which is maintained under § 7-101a . . . A plain reading of the whole statute indicates that the limitation and notice provisions of § 7-101a(d) are applicable only to actions for indemnification maintained under § 7-101a(a) and to an action for reimbursement of defense expenses pursuant to § 7-101a(b)." Id.
The issue now before the court, as presented by the parties, is whether notice must be filed within six months of the entry of a judgment in the underlying action or within six months of the commencement of an underlying action. Although the issue of when notice is timely pursuant to § 7-101a(d) has not been specifically addressed, the Supreme Court has discussed timeliness as it relates to indemnification actions brought by citizens against a municipality. Kostyal v. Cass, 163 Conn. 92, 97-98, 302 A.2d 121 (1972). In Kostyal, the court held that indemnification actions under General Statutes § 7-465 are timely " [o]nce a plaintiff has successfully pursued a cause of action and obtained judgment against the defendant municipal employee, the latter can (1) pay the judgment and request reimbursement from the municipality or (2) request the municipality to pay the judgment in his behalf." (Emphasis added.) Id. Additionally, in civil actions for indemnification under General Statutes § 52-598a, the employee's cause of action for indemnification does not accrue until there is a determination of the underlying action between the municipal employee and the plaintiff that brought the claim against him. Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn.App. 699, 711, 700 A.2d 1179 (1997).
General Statutes § 7-465(a) provides in relevant part: " Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty."
General Statutes § 52-598a provides: " Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement."
Moreover, Superior Court cases, with facts similar to the present case, have addressed the issue of timeliness under § 7-101a(d). In Spatola v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV-07-4005617-S, (September 26, 2007, Pickard, J.) (44 Conn. L. Rptr. 242, 243), the municipality argued that the plaintiff's notice, as required by § 7-101a(d), was late because the cause of action accrued on the date the plaintiff retained counsel in the underlying case. The court held that the cause of action did not accrue until the underlying case against the plaintiff was dismissed, reasoning that " [t]he defendant town is not required to provide a defense to an employee against whom a claim is made . . . The town's obligation is to reimburse the employee for his or her expenses if he is successful. The plaintiff's cause of action would not have accrued against the defendant town until the complaint was dismissed because it is not until then that plaintiff would have had been able to successfully bring an action for reimbursement." (Citation omitted.) Id.
In Cannada v. Grady, Superior Court, judicial district of Hartford, Docket No. CV-98-0584296-S, (September 7, 2001, Berger, J.) (30 Conn. L. Rptr. 404, 405-06), the municipal employee initiated an action under § 7-101a against the town, which the court deemed premature. In Cannada, notice was given to the municipality before judgment was rendered in the underlying action. Id., 406. The court found that the employee had " not yet sustained any real damages" and concluded that " until there is a determination of the [underlying] action . . . [the] cause of action for indemnification has not accrued." Id. Similarly, in Knapp v. Derby, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-95-0049918-S, (January 15, 1998, Thompson, J.) (21 Conn. L. Rptr. 149, 149), the court held that the § 7-101a(d) notice requirement for the municipal employee's cause of action arose when the underlying case was dismissed, and the municipality denied his request to find him harmless and reimburse his legal fees.
In the present case, the plaintiff was entitled to reimbursement of his legal fees and costs by the defendant only if he prevailed and a judgment did not enter against him in the Tax Data action. If the plaintiff did not prevail in the Tax Data action, then he would have no indemnification claim against the defendant. Accordingly, the plaintiff could not have given notice to the defendant prior to a judgment having been rendered in the Tax Data action. Furthermore, the amount of loss suffered by the plaintiff was not ascertainable at the commencement of the Tax Data action because no determination of liability had yet been made, actionable harm was not suffered until the plaintiff had accumulated legal fees and costs for his defense, and he received a judgment in his favor. Therefore, the notice to the defendant dated April 24, 2015, was timely as it was filed with the defendant's town clerk within six months of receiving a final judgment in the Tax Data action, and consequently, the court has subject matter jurisdiction to hear this action.
While this memorandum only discusses the notice of claim issue, the defendant also moves to dismiss the complaint on the ground of prior pending action doctrine. " [A]lthough a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.)
CONCLUSION
The court denies the defendant's motion to dismiss.
Cooney are distinguishable from the present case in that " Montes himself . . . incurred no legal fees or other costs, " but, rather, Montes' insurance company incurred those expenses. Id. In the present case, the plaintiff personally incurred legal fees and costs associated with his representation in the Tax Data action.
Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). On the basis of the arguments previously made and already addressed, the present case is a new, separate action, relying on a properly served and timely notice, unlike the previous cases referenced by the defendant, whereby the defendant did not receive a notice of claim from the plaintiff.