Opinion
No. CV 03 0475740 S
March 18, 2004
MEMORANDUM OF DECISION MOTION TO DISMISS #114
The defendant State of Connecticut has filed a motion to dismiss the action pursuant to Practice Book § 10-31(a)(1) on the grounds that the action is barred by the doctrine of sovereign immunity, and thus, the court lacks subject matter jurisdiction.
The plaintiff by way of a complaint dated March 7, 2002, instituted this action against Cynthia Troxler and the State of Connecticut alleging that on August 9, 2001, Troxler was operating a motor vehicle owned by the State of Connecticut while in the course of her employment when she negligently caused an accident with the plaintiff's vehicle causing the injuries the plaintiff complains of.
On December 1, 2003, this court granted the defendant Troxler's motion to dismiss the complaint based on the grounds of sovereign immunity. The court relied upon General Statutes § 4-165, which states in pertinent part:
No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.
The defendant State of Connecticut now seeks to dismiss the action as it pertains to the state claiming that the complaint does not plead that the state vehicle was "insured by the state against personal injuries or property damages," or that the action is brought pursuant to General Statutes § 52-556. The state also argues that the action does not plead that the plaintiff was granted permission from the claims commissioner to bring this action, pursuant to General Statutes § 4-160(c).
Sec. 52-556. Actions for injuries caused by motor vehicles owned by the state reads as follows:
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.
Section 4-160(c) reads as follows:
CT Page 4431 (c) In each action authorized by the Claims Commissioner pursuant to subsection (a) or (b) of this section or by the General Assembly pursuant to section 4-159 or 4-159a, the claimant shall allege such authorization and the date on which it was granted, except that evidence of such authorization shall not be admissible in such action as evidence of the state's liability. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.
The plaintiff in opposing the motion to dismiss, argues that sovereign immunity is no defense to claims asserted under General Statutes § 52-556; that the claim was properly asserted under § 52-556; and that the defendant State of Connecticut by way of its responses to the plaintiff's requests for interrogatories, which were filed prior to the motion to dismiss, has admitted to maintaining umbrella coverage insurance covering the subject motor vehicle.
The court takes judicial notice that the presence of umbrella insurance coverage occurs only when there is underlying coverage, even if the vehicle was self-insured. See Parsons v. United Technologies Corp., 243 Conn. 66, 85, 700 A.2d 655, 665 (1997) (a court may take judicial notice of things that are within the knowledge of people generally or are generally accepted as true and are capable of ready and unquestionable demonstration).
The standards to be applied to a review of a motion to dismiss are well-established. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; and (3) improper venue. "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." Richardello v. Butka, 45 Conn. Sup. 336, 717 A.2d 298, 45 Conn. L. Rptr. 336 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn. App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).
It is well established principle that "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994); Lussier v. Department of Transportation, 228 Conn. 343, 349 (1992); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185-86 (1991).
The general rule is that "state cannot be sued without its consent." Horton v. Meskill, 172 Conn. 615, 623 (1977). The state, however, may waive sovereign immunity by statute if it so chooses. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195, 1199 (1990). "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity." Miller v. Egan, 265 Conn. 301, 313-14, 828 A.2d 549 (2003); See also, Martinez v. Dept. of Public Safety, 263 Conn. 74, 85-86 (2003). General Statutes § 52-556 by its plain language does waive the state's sovereign immunity.
The defendant state's motion to dismiss rests on the assertion that the plaintiff's complaint fails to properly invoke § 52-556 since the complaint does not specifically allege that the State of Connecticut insured the vehicle in question. The defendant state argues that an essential element in an action against the state under § 52-556 is that the state-owned vehicle must "be insured by the state against personal injuries or property damage," and therefore, the absence of such allegation in the plaintiff's complaint is fatal.
General Statute § 52-566 provides a limited waiver of sovereign immunity and, as a break from common law, it is to be strictly construed. Filippi v. Sullivan, 78 Conn. App. 796, 800, 828 A.2d 620 (2003); Lussier v. Dept Of Transportation, supra, 228 Conn. 343. It is well established 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." (Citations omitted.) Miller v. Egan, supra, 265 Conn. 329; White v. Burns, supra, 213 Conn. 312. "[T]he state is not to be sued without its consent. Its rights are not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication." (Emphasis added.) (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 301, (Zarella, J., with whom Sullivan, C.J., joins, concurring); State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 (1908); Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990); Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633 (1974); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).
"In ruling upon whether a complaint survives a motion to dismiss, 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). Pleadings are to be read "broadly and realistically rather than narrowly and technically." (Internal quotation marks omitted.) Flanagan v. Blumenthal, 265 Conn. 350, 365-66, 828 A.2d 572 (2003); Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002). Statutes in derogation of sovereign immunity, however, are to be construed narrowly. Hunte v. Blumenthal, 238 Conn. 146, 152, 680 A.2d 1231 (1996); Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975).
Whether the plaintiff's complaint sufficiently alleges facts that, construed in the light most favorable to him, demonstrate that he is entitled to proceed under the waiver of sovereign immunity contained in § 52-566 is a question of statutory interpretation. "Statutory construction . . . presents a question of law . . . [Therefore, in accordance with] our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Vickers, 260 Conn. 219, 223-24, 796 A.2d 502 (2002); See also, Public Act 03-154.
PA. 03-154 reads as follows:
Section 1. (Effective October 1, 2003) The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
When the 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. Because this case comes to the court on a statutory immunity issue, pursuant to a motion to dismiss, the court does not pass on whether the complaint was legally sufficient to state a cause of action. In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts with respect to § 52-566, to support a conclusion that legislative intent of § 52-566 was satisfied. See Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). The question before the court, therefore, is whether the facts as alleged in the plaintiff's pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity. Id. at 376.
"[T]he interpretation of pleadings is always a question [of law] for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citations omitted; internal quotation marks omitted.) Harris v. Shea, 79 Conn. App. 840, 842 (2003); Parsons v. United Technologies Corp., 243 Conn. 66, 82, 700 A.2d 655 (1997). "As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citations omitted; emphasis added; internal quotation marks omitted.) Harris v. Shea, supra, 79 Conn. App. 843; Constantine v. Schneider, 49 Conn. App. 378, 387, 715 A.2d 772 (1998).
"[T]he language of § 52-556, which has remained substantially unchanged since the statute first was enacted in 1927. Section 52-556 provides in relevant part that [a]ny person injured . . . through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state . . . shall have a right of action against the state . . . With the enactment of § 52-556, therefore, the state expressly waived sovereign immunity in motor vehicle negligence actions; Capers v. Lee, 239 Conn. 265, 273, 684 A.2d 696 (1996); and specifically consented to suits based on negligence. The legislature's use of the term negligence in § 52-556 manifests the obvious intention of the legislature to consent to suit against the state based on the breach of a common-law duty of care in the operation of state owned and insured vehicles by state employees and officials. See Sullivan v. State, 189 Conn. 550, 555 n. 7, 457 A.2d 304 (1983) (§ 52-556 permits recovery against state on theory of vicarious liability for certain negligent acts by its agents, a common-law liability borne by private employers)." (Internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 263-64, 721 A.2d 511 (1998).
The defendant argues that legislative mandates and the pleading requirements for statutes such as § 13a-144 and § 13a-149, requiring written notice and the pleading of "due care" and "sole proximate cause," are examples that make it clear that it is incumbent upon a plaintiff to plead the essential elements of a legislative waiver of sovereign immunity in order to comport with that waiver of sovereign immunity. See Ormsby v. Frankel, 255 Conn. 670, 676, 768 A.2d 441 (2001) (§ 13a-144 requires that a plaintiff must prove that the defect in the highway of which he complains was the sole proximate cause of his injury); see also, Mastrolillo v. Danbury, 61 Conn. App. 693, 699-700 (plaintiff in action based on § 13a-149 must allege that he was acting in "due care").
Sec. 13a-144. Damages for injuries sustained on state highways or sidewalks reads in relevant part as follows:
Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. CT Page 4432
No such action shall be brought except within two years from the date of such injury, nor unless 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 has been given in writing within ninety days thereafter to the commissioner . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice. (Emphasis added.)
Sec. 13a-149. Damages for injuries by means of defective roads and bridges reads as follows:
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.
No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. 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 . . . No 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.)
"The purpose of the notice requirements are not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the governmental entity to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests . . ." Salemme v. Seymour, 262 Conn. 787, 793, 15 A.2d 1188 (2003). In Sanzone v. Board of Police Commissioners, supra, 219 Conn. 198, the court stated that "statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims." Id.
Regarding the notice provisions of § 13a-144, the court in Lussier v. Department of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), stated:
The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made. (Emphasis added.) LoRusso v. Hill, 139 Conn. 554, 557, 95 A.2d 698 (1953); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952); see Murray v. Milford, 380 F.2d 468, 473 (2d Cir. 1967).
The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit.
Lussier v. Department of Transportation, supra, 228 Conn. 354; Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947); Warkentin v. Burns, 223 Conn. 14, 18 (1992).
The requirement that the plaintiff plead that the vehicle in the present case "was insured by the state" serves no such purpose of notice. That the plaintiff's complaint lacks such an allegation does not violate the obvious intention of the legislature in enacting § 52-556. The intent expressed in § 52-556 is to consent to suit against the state based on the breach of a common-law duty of care in the operation of state-owned and insured vehicles by state employees and officials. A requirement that the plaintiff's complaint must allege that the vehicle "was insured by the state" would not serve the same purpose that notice and pleading requirements for § 13a-144 and § 13a-149 serve. Those notice requirements and the information contained therein are to alert the state; to give its commissioner an opportunity to make a timely investigation; and to allow the commissioner to gather facts to protect the state in the event of a lawsuit.
There is no denial by the defendant state that the motor vehicle in question was owned by the state and was covered by insurance. There is no surprise or prejudice to the state by virtue of the plaintiff's allegations set forth in the complaint. Even subsequent to the filing of the complaint, the plaintiff would be able to amend the complaint to add the words "and insured." See Hope v. Cavallo, 163 Conn. 576, 579, 316 A.2d 407 (1972). Had the state discovered that the vehicle in issue was not owned or insured by the state, then the action would not satisfy § 52-556 and would, therefore, not be authorized. Capers v. Lee, 239 Conn. 265, 275 n. 6, 684 A.2d 696 (1996).
The court further notes that General Statutes § 52-572h(o) describes § 52-556 as "an action for injuries caused by a motor vehicle owned by the state." (Emphasis added.) General Statutes § 52-572h discusses negligence actions, the doctrines applicable and the liability of multiple tortfeasors for damages. Public Act 03-154 requires that the court ascertain the meaning of a statute first, from the text of the statute itself and its relationship to other statutes. "If, after examining such text and, considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." In reviewing § 52-556 in conjunction with § 52-572h the court concludes that the lack of the phrase "insured by the state against personal injuries or property damages" in the plaintiff's pleadings is not fatal to his action. "It is to be presumed that the legislature in enacting a law intended it to be reasonable and just, and where a law admits of a construction that will make it so, it is the duty of a court to uphold it by giving such a construction." Hope v. Cavallo, supra, 163 Conn. 586; Camp v. Rogers, 44 Conn. 291, 298.
Sec. 52-572h(o) reads as follows:
(o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556. (Emphasis added.)
Because there is an express waiver of sovereign immunity pursuant to General Statutes § 52-556, and because the plaintiff's pleadings are sufficient to invoke the waiver of immunity, the plaintiff was not required to present his claim to the claims commissioner either for payment or authorization to sue the state. Id. at 273.
Accordingly for the reasons set forth, herein, the defendant's motion to dismiss is hereby denied.
The Court
By: Richard E. Arnold, Judge