Opinion
CV155008478
11-19-2015
State Farm Mutual Automobile Ins. Co. v. State of Connecticut Department of Transportation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#112)
Elpedio N. Vitale, J.1
The defendant, State of Connecticut, Department of Transportation (" State"), moves to dismiss the plaintiff's Second Amended Complaint dated August 20, 2015.
In this subrogation action, the plaintiff insurance company alleges that on or about October 7, 2014 its insured's vehicle was spattered with white paint as a result of freshly painted stripes and/or lane markers on Rt. 9 southbound in Middletown. The stripes and/or lane markers were painted by state employees. The plaintiff, State Farm Mutual Automobile Insurance Company (" State Farm"), is claiming $1, 678.87, the amount it paid to its insured, Andrew Plude. According to the Second Amended Complaint, the alleged property damage resulted from " carelessness and negligence of the defendant, State of Connecticut, Department of Transportation, in one or more of the following ways:
a) in that its agent(s), servant(s) and/or employee(s) failed to place barrier(s) immediately subsequent to the painting of white stripes and/or lane markers on said state roadway.
b) in that its agent(s), servant(s) and/or employee(s) failed to timely post notification on said roadway that white stripes and/or lane markers had been recently painted on said state roadway.
The defendant argues that the plaintiff's claim should be dismissed because its claim does not fall within the statutory waiver afforded by Connecticut General Statute § 13a-144. Specifically, the defendant argues that the highway defect statute does not apply because: 1) the highway defect statute does not apply to insurance companies seeking to recoup payouts to its insureds; 2) the State had erected " Series 16" signs limiting its liability to motorists; and 3) the complained of condition did not constitute a highway defect. Absent a statutory waiver to the State's sovereign immunity, the defendant asserts that the Court lacks subject matter jurisdiction over this action.
The plaintiff objects to the Motion to Dismiss, and contends that State Farm is a person as stated within Connecticut General Statute § 13a-144 and can maintain an action for subrogation. Further, plaintiff alleges that the erection of " Series 16" signs does not automatically create immunity for the defendant. Finally, plaintiff argues that the condition claimed in the complaint does constitute a highway defect.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, now § 10-31. " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006). " The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). " When a . . . 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." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 501.
" An evidentiary hearing is necessary [when] a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." Ruisi v. O'Sullivan, 132 Conn.App. 1, 5, 30 A.3d 14 (2013). The court has reviewed the memoranda submitted by the plaintiff and defendant, as well as the documents submitted.
The court concludes that an evidentiary hearing is not required. " [W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . Nevertheless, a plaintiff may surmount this bar against suit if, inter alia, he can demonstrate that the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . Even when there is an express statutory waiver of immunity, however, the plaintiff's complaint must allege a claim falling within the scope of the waiver . . . " Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by a motion to dismiss . . ." Stotler v. Dept. of Transportation, 313 Conn 158, 165, 96 A.3d 527 (2014).
In order for a plaintiff to recover under § 13a-144, " the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [Commissioner of Transportation] actually knew of the particular defect or that, in the exercise of [his] supervision of highways . . . [he] should have known of that defect; (3) that the [Commissioner of Transportation], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence." (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005). " Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341-42, 766 A.2d 400 (2001).
Familiarity with the case law and arguments recited by the parties is presumed and need not be generally repeated.
Where the state has waived its immunity by legislation, such statutes must be strictly construed in favor of the state. See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 501. Here the legislation at issue is § 13a-144 which provides, in relevant part: " 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 . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court." There is no dispute that since " there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144." White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990).
The court recognizes that the specific issue of defining " any person" for purposes of applying § 13a-144, or similar statutes, has been previously addressed by trial courts. After a careful review of said case law, the court agrees with the result and conclusion reached by Judge Elgo in Allstate Fire and Casualty Ins. Co. v. Department of Transportation, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-14-6049355 (September 4, 2014, Elgo, J.) , and Judge Sheldon in American Manufacturers Mut. Ins. Co. v. State, Superior Court, judicial district of Hartford, Docket No. CV-94-0533136-S (November 23, 1994, Sheldon, J.) .
In moving to dismiss the instant complaint based on, inter alia, sovereign immunity, the defendant Department of Transportation claims that State Farm, a subrogee and an insurance company, is not " a person" pursuant to § 13a-144, and thus may not stand in place of the injured party and seek relief under its provisions. As the decision in Allstate Fire and Casualty Ins. Co., supra, pointed out, the court in American Manufacturers correctly concluded that the class of statutes whose provisions create a cause of action for individual persons to sue the state have been narrowly construed by our appellate courts. As a result, this court is also constrained to interpret the language of § 13a-144 as limiting the right of a cause of action against the state to " a person" and cannot be construed to include any other legal entity without any language in the statute so specifically stating. Therefore, " State Farm" cannot properly bring this action under its provisions. For the foregoing reasons, the Motion to Dismiss is granted.
Since this issue is dispositive of the Motion to Dismiss, this court does not reach the other grounds asserted in the defendant's motion.