Opinion
No. CV03-0473270
May 9, 2003
MEMORANDUM OF DECISION MOTION TO DISMISS #102
Pursuant to Practice Book §§ 10-31 and 10-33, the defendant State of Connecticut has filed a motion to dismiss the plaintiff's complaint dated January 8, 2003, bearing a return date of February 25, 2003. The complaint was filed with the court on January 21, 2003, having been previously served on the Attorney General's Office at 55 Elm Street, Hartford, Connecticut, on January 9, 2003.
The defendant has moved to dismiss this action claiming that the plaintiff's complaint is not in accordance with the permission to sue granted by the Claims Commissioner pursuant to General Statutes § 4-160 (a). More specifically, the Commissioner granted permission to sue for $30,000 and the plaintiff is seeking unspecified monetary damages in excess of $15,000.
§ 4-160 (a) reads as follows:
(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.
Secondly, the defendant claims that the plaintiff failed to file her action in accordance with General Statutes § 4-160 (d) "within one year from the date such authorization to sue is granted" by the Claims Commissioner. Thus, the defendant claims that the court lacks subject matter jurisdiction over the plaintiff's action.
§ 4-160 (d) reads as follows:
(d) No such action shall he brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the Claims Commissioner on October 1, 1992, or presented to the Claims Commissioner on or after said date for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted. Action shall be brought against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford or in the judicial district in which the claim arose.
The plaintiff denies these claims by the defendant and asserts that she has brought her action properly, in compliance with General Statutes § 4-160 (c) and § 52-91. She also argues that she served her complaint in a timely manner and within the proper judicial district pursuant to General Statutes § 4-160 (d) and § 52-46a.
§ 4-160 (c) reads as follows:
(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.
§ 52-91. Pleadings; contents of complaint.
There shall be one form of civil action.
The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.
§ 52-46a. Return of process.
Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.
In reviewing a motion to dismiss, the court first looks to the relevant standards of law for such motions. Pursuant to Practice Book § 10-31 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, 18 Conn.L.Rptr. 409 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544 (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 (1999); Bradley's Appeal from Probate, 19 Conn. App. 456, 461-62 (1989). "It is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Pamela B. v. Ment, 244 Conn. 296, 309 (1998). It is a 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).
I
A summary of the facts is necessary to analyze the claims of the parties. The plaintiff alleges that on October 31, 1998, while having her car inspected at a Connecticut Motor Vehicle branch office, agents and/or employees of the State negligently lowered a vehicle lift onto the plaintiff's left foot, causing her injury. On or about December 9, 1998, the plaintiff filed a notice of claim with the State Claims Commissioner, who acknowledged his receipt of her claim by way of a letter dated January 19, 1999. In his letter, the Claims Commissioner requested a specific ad damnum. The plaintiff, thereafter replied by amending her notice of claim to claim damages in the amount of $30,000. On December 20, 2001, the Claims Commissioner held a liability hearing because the defendant denied liability.
On January 10, 2002, the Claims Commissioner granted the plaintiff permission to sue the State of Connecticut, without specifying any damages amount in his finding and order. In the Commissioner's memorandum of decision concerning the granting of the plaintiff's permission to sue, there is no specification that said permission is for a specific amount of money. The memorandum only notes in the procedural history section of said memorandum, that the plaintiff's amended notice of claim is for $30,000.
On January 9, 2003, the plaintiff served her complaint upon the Office of the Attorney General, and the complaint was filed in the superior court, judicial district of New Haven at New Haven on January 21, 2003. Said complaint noted in the "Amount in Demand" section, that exclusive of interest and costs, the amount in demand was "not less than $15,000."
II
The defendant argues that the plaintiff did not receive permission from the Claims Commissioner to sue for an indeterminate amount of money, and is limited to the $30,000 amount claimed in her amended notice of claim to the Claims Commission. Therefore, the defendant requests that the plaintiff's complaint seeking an amount of damages of "not less than $15,000" should be dismissed. The defendant cites Calvert v. State of Connecticut, Superior Court, judicial district of New London at Norwich (March 9, 1995, Hendel, J.), 14 Conn.L.Rptr., and Sarges v. State, 26 Conn. Sup. 24, 209 A.2d 886 (1965), both of which are not binding on this court.
In Calvert, the claimant sought permission to sue the State for $15,000. After being granted this permission, the claimant sought to increase his claim of monetary damages to $25,472. While the court found that the claimant should be limited to the sum of $15,000 originally claimed, the court did not dismiss the claimant's case, but only dismissed one count sounding in breach of contract because the claimant never put the Claims Commissioner on notice that he was proceeding on a breach of contract theory in addition to claims of negligence.
In Sarges the claimant presented a claim to the Claims Commissioner in the amount of $20,000. After being granted permission to sue the State, the claimant filed suit seeking $75,000 in damages. The defendant filed a plea in abatement to which the plaintiff demurred. The court, in sustaining the plea in abatement and overruling the demurrer ruled that the plaintiff was limited to filing an action only for the $20,000 damage figure he had presented to the Claims Commissioner.
The intent of the General Assembly in passing an act, as expressed by it, is the controlling factor, and, in ascertaining this, the application of common sense to the language is not to be excluded. State v. Bello, 133 Conn. 600, 604, 53 A.2d 381 (1947).
When the court considers that chapter 53 is intended to make available a means of suing the state, where such a method did not exist, when it reviews the various sections thereof already referred to, when it considers them, as it must, to be in derogation of sovereignty and therefore to be strictly construed in favor of the state, when it considers the plain import of the language on the floor of the senate, it is led to the conclusion that to support the plaintiff's position here flies in the face of what the legislature intended. A statement of the amount requested as relates to a claim against the state (§ 4-147) and the authorization to sue the state on any claim for more than twenty-five hundred dollars (§ 4-160) give weight to the state's stand that when permission to sue for $20,000 was sought and the plaintiff was authorized to sue, this authorization related to the amount requested, namely $20,000. Such authorization was no carte blanche authority to the plaintiff to sue for any amount that he might choose. If this were so, as the plaintiff contends, the method of making a claim and the authorization to sue the state would not have been set forth in the detail and manner they are set forth in chapter 53, nor would the commission be able to determine what is just and equitable in authorizing a suit against the state on a claim of over $2500 unless it considered the statement of the amount requested, namely, the amount sought in damages. § 4-160.
(Internal quotation marks omitted.) Sarges v. State, 26 Conn. Sup. 24, 28-29, 209 A.2d 886 (1965).
The plaintiff in this action has not indicated in any way that she seeks damages above and beyond that sought in her amended notice of claim. The plaintiff has complied with General Statutes § 52-91. General Statutes § 52-91 which was amended by Public Act 83-144 states in relevant part:
P.A. 83-144 replaced provisions re allegations of the amount in demand and the threshold amounts with the provision that when money damages are sought the demand for relief shall set forth that the amount, legal interest or property in demand, exclusive of interest and costs, is (1) $15,000 or more, (2) $2500 or more, but less than $15,000 or (3) less than $2500, and added provision that in a contract action in which money damages of less than $15,000 are sought the demand for relief shall set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.
The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs . . .
The court construes the facts and allegations of her complaint in a manner most favorable to the pleader. The plaintiff's demand in her complaint is consistent with the amount specified in her notice of claim and with that which may be inferred from the permission to sue. By filing a claim seeking an amount "not less than $15,000" the plaintiff has not stated that she is seeking more than $30,000. There is nothing in General Statutes §§ 4-160 or4-147 indicating how a claimant should declare an amount of damages in a complaint against the State of Connecticut, other than the legislative mandate of § 52-91. While § 4-147 indicates that a statement of the amount requested must be made in the notice to the Claims Commissioner, the statute indicates that the notice and the data therein is for "informational purposes only." Similarly, § 4-160 contains no requirement to specify damages in a complaint other than the form established by § 52-91. The legislature has not so acted, and there is no reason to assume that they intended otherwise.
Sec. 4-160. Authorization of actions against the state.
(a) When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.
(b) In any claim alleging malpractice against the state, a state hospital or a sanitarium or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.
(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.
(d) No such action shall be brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the Claims Commissioner on October 1, 1992, or presented to the Claims Commissioner on or after said date for which authorization to sue is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted. Action shall be brought against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford or in the judicial district in which the claim arose.
(e) Civil process directed against the state shall be served as provided by section 52-64.
(f) Issues arising in such actions shall be tried to the court without a jury.
(g) The laws and rules of practice governing disclosures in civil actions shall apply against state agencies and state officers and employees possessing books, papers, records, documents or information pertinent to the issues involved in any such action.
(h) The Attorney General, with the consent of the court, may compromise or settle any such action. The terms of every such compromise or settlement shall be expressed in a judgment of the court.
(i) Costs may be allowed against the state as the court deems just, consistent with the provisions of chapter 901.
(j) The clerk of the court in which judgment is entered against the state shall forward a certified copy of such judgment to the Comptroller. The Attorney General shall certify to the Comptroller when the time allowed by law for proceeding subsequent to final judgment has expired and he shall designate the state agency involved in the action. Upon receipt of such judgment and certification the Comptroller shall make payment as follows: Amounts directed by law to be paid from a special fund shall be paid from such special fund; amounts awarded upon contractual claims for goods or services furnished or for property leased shall be paid from the appropriation of the agency which received such goods or services or occupied such property; all other amounts shall be paid from such appropriation as the General Assembly may have made for the payment of claims.
(k) Within five days after the convening of each regular session, the Attorney General shall report to the General Assembly on the status and disposition of all actions authorized pursuant to this section or section 4-159.
Sec. 4-147 reads in relevant part:
Any person wishing to present a claim against the state shall file with the clerk of the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state, if such permission is sought. A notice of claim, if sent by mail, shall be deemed to have been filed with the Office of the Claims Commissioner on the date such notice of claim is postmarked . . . The clerk of the Office of the Claims Commissioner shall promptly deliver a copy of the notice of claim to the Attorney General. Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements, except as may be necessary for clarity of presentation and facility of understanding.
The plaintiff claims that pursuant to Practice Book §§ 10-35(1) or 10-35 (4), the defendant can file to seek a more particular statement of the plaintiff's demand, or that the plaintiff might seek permission of the court to allow the plaintiff to amend the amount in demand to allow the plaintiff to specifically set forth $30,000 as her amount in demand. As a last alternative, the plaintiff argues that the parties simply stipulate to the court that the court order a cap on damages not to exceed the sum of $30,000, as this action would be tried to the court pursuant to § 4-160 (f).
§ 4-160 (f) reads as follows:
(f) Issues arising in such actions shall be tried to the court without a jury.
The court in rendering its decision on this motion to dismiss takes no position on these suggestions of the plaintiff, as the court has found that the amount in demand as stated in the plaintiff's complaint.
III
The defendant next argues that the plaintiff's complaint was not filed in a timely manner. General Statutes § 4-160 (d) provides that "no such action shall be brought but within one year from the date such authorization to sue is granted." The defendant concedes that the Attorney General's Office was served prior to the expiration of one year and that the complaint was filed in the appropriate judicial district in compliance with General Statutes § 52-46a. The defendant also concedes that in Connecticut it has long been held that an action is brought once the writ, summons and complaint have been served upon a defendant. See General Statutes § 52-45a; Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990). "An action is commenced not when the writ is returned but when it is served upon the defendant." Seaboard Burner, Corp. v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958).
The defendant argues that the action has not been brought until it has been filed and launches into a curious analysis of statutory interpretation, claiming that there are exceptions to this rule, and comparing the present matter to a small claims suit and a condemnation reassessment action. The defendant continues that if the word "brought" as used in § 4-160 (d) meant "served" as this court and Connecticut Supreme Court has so interpreted it, the legislature would have said so. The defendant notes that in § 4-160 (e), the legislature stated that "service" is to be made on the Attorney General. Therefore, "served" and "brought" have different meanings. The applicable statutes here defy such an interpretation.
General Statutes § 4-160 (d) requires that the action be brought within one year from the date the authorization to sue is granted. It also states that the action be brought in the judicial district where the plaintiff resides if, as here, the plaintiff is a Connecticut resident. Civil process regarding the plaintiff's suit is governed by § 52-64 which states, "service of civil process in any civil action or proceeding maintainable against . . . the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General or at his office in Hartford." The defendant seeks to equate the word "brought" with the word "filed" and to distance the court's view of the word "brought" from its connection with the word "served." The applicable statutes here defy such an interpretation. The court does not adopt this reasoning.
Sec. 52-64; Service in action against state.
Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General or at his office in Hartford.
The better view, as the plaintiff argues, is to adopt the normal meaning of the word "brought" which is "commenced." The legislature in § 4-160 (d) directs a plaintiff to commence an action in the normal way by serving the defendant within one year from the date the authorization to sue is granted, and to return it to the proper judicial district. The legislature has given a road map to the procedure to be followed. The legislature did not intend "brought" to mean "filed" as proposed by the defendant. In so finding, the court relies upon the case precedent cited herein, that hold that an action has been brought and commenced once it has been served on the defendant.
The plaintiff has filed her action in a timely manner. It is in proper form and has been returned and filed in the proper judicial district. Accordingly, the motion to dismiss is denied.
THE COURT
Arnold, J