Wagner v. State

Full title: JONATHAN WAGNER ET AL. v. STATE OF CONNECTICUT ET AL

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Nov 17, 2010

2010 Ct. Sup. 22336 (Conn. Super. Ct. 2010)

Opinion

No. CV 09-5026341-S

November 17, 2010

MEMORANDUM RE MOTION TO DISMISS

PELLEGRINO, JTR.

The defendant has filed this Motion to Dismiss, dated September 15, 2009, seeking to dismiss the amended complaint as to all counts except Count Three against the defendant state and state officials in their official capacities on the doctrine of sovereign immunity and each official in their individual capacity on the grounds of their qualified immunity and statutory immunity under General Statutes § 4-165.

The plaintiff, Jonathan Wagner, alleges that, as a state retiree receiving workers' compensation, he was required by officials of the state of Connecticut to pay higher premiums for his health care insurance than state retirees who were not receiving workers' compensation were required to pay. On August 15, 2009, the plaintiff filed a seven-count amended complaint against the following defendants: the State of Connecticut, Brenda Sisco, Commissioner of the Department of Administrative Services; Nancy Wyman, Comptroller of the State of Connecticut; Thomas C. Woodruff, Ph.D., Director of the Retirement and Benefits division of the Office of the State Comptroller; Theresa C. Lantz, Commissioner of the Connecticut Department of Correction; Susan I. Hamilton, Commissioner of the Connecticut Department of Children and Families; Thomas A. Kirk, Jr., Ph.D., Commissioner of the Connecticut Department of Mental Health and Addiction Services; Peter H. O'Meara, Commissioner of the Connecticut Department of Developmental Services; John Danaher III, Commissioner of the Connecticut Department of Public Safety; Raeanne V. Curtiss, Commissioner of the Connecticut Department of Public Works; and James Boice, Commissioner of the Connecticut Department of Transportation.

Counts one and two are against the state and the named defendants in their official and individual capacities and counts three through seven are against them in their official capacities.¹ The plaintiff brings the action on behalf of himself and all members of a class, which has not yet been certified by the court. He defines the class as "[a]ll persons covered by pertinent provisions of the state CEBAC V contract or Tier I, II or Tier IIA collective bargaining contracts . . . who are and/or have been employed by the State of Connecticut and who suffered a work-related injury or injuries and elected to exercise their statutory rights to receive workers' compensation benefits pursuant to Sections 31-275, et seq. of the Connecticut General Statutes . . . and were subsequently granted a service connected disability retirement award or a non-service connected disability retirement award while still eligible for and/or receiving workers' compensation benefits." The plaintiff seeks damages, attorney fees and equitable relief on behalf of all members of the proposed class and alleges facts in support of class certification.²

1 Although the amended complaint does not expressly state that counts three through seven are asserted against the defendants only in their official capacities, the plaintiff clarifies this on pages twenty-four and twenty-five of his memorandum in objection to the defendants' motion to dismiss, which was filed on November 13, 2009.

2 The plaintiff alleges the following facts in support of class certification: the proposed class is so numerous that individual joinder of its members would be impractical; the exact size of the class is currently unknown; his claims are typical of the individual claims of the members of the proposed class; he fairly and adequately represents the members of the class and has no interest that is antagonistic to those of the proposed class members; his counsel is experienced in class action suits; common questions of law and fact predominate over questions affecting only individual members of the proposed class; a class action is superior to other methods for the fair and efficient adjudication of this controversy; the expense and burden for proposed class members would be impractical, difficult and/or impossible; individual litigation would impose a substantial burden on the court and raise a risk of contradictory and inconsistent adjudication; proceeding as a class action presents fewer management difficulties, preserves the resources of the court and is the only means reasonably available to adequately protect the rights of all class members.

The plaintiff alleges the following facts: That beginning in 1995, he was a correction officer employed by the Connecticut Department of Correction and that the defendant Woodruff is responsible for the administration, supervision and/or payment of disability retirement benefits. The defendants' actions, he alleges, deprived him and other class members of their federal and state rights to equal protection of the laws and violated their state statutory and common-law rights. He alleges that the acts and omissions of the defendants were outside of their statutory authority and/or were part of a continuous course of conduct toward the plaintiff and the other class members beginning on their retirement from state service and continuing until expiration of their eligibility for workers' compensation benefits and the reimbursement and/or adjustment of their overpayment of health care costs and premiums.

The plaintiff alleges that, on or about February 24, 2003, he was injured in the course of his employment, which was under the supervision and control of Lantz. Since that date he has been entitled to and has been receiving benefits pursuant to the Connecticut Workers' Compensation Act, General Statutes § 31-275 et seq. Since his injury, the plaintiff has made monthly payments to the Department of Correction to maintain health care insurance. On or about March 1, 2005, the State Employees Retirement Commission qualified the plaintiff for service connected disability status and paid disability retirement benefits to the plaintiff under the supervision of Wyman and Woodruff. The plaintiff contends that, under the terms of their state retirement contracts, upon attaining retirement status, he and other state disability retirees are entitled to maintain healthcare insurance at the same rate as all other state retirees covered by state retirement contracts without regard to whether they are simultaneously receiving workers' compensation benefits. Prior to commencing this action, the plaintiff requested that his health insurance premiums be reduced to comply with his state retirement contract and his requests were refused. To whom the plaintiff addressed these requests is not stated in the complaint. The plaintiff alleges that the defendants caused all members of the proposed class to pay insurance premiums in a similar manner and the plaintiff and all potential class members have overpaid and/or continue to overpay for health insurance coverage due to their decision as disabled workers to elect disability retirement status while receiving workers' compensation. The plaintiff alleges that, on or about November 14, 2007, Wyman, through a memorandum to state personnel and payroll officers and business managers, including Woodruff, advised that Connecticut employees receiving workers' compensation benefits who had also reached retirement status were being unfairly treated when compared with state employees who had reached retirement status and were not receiving workers' compensation.³ The defendants addressed the dissimilar treatment by, starting on January 1, 2008, prospectively requiring retirees receiving workers' compensation to pay the same amount for health insurance premiums as retirees not receiving workers' compensation. The plaintiff was required, however, to pay the higher premiums for a period of time after January 1, 2008. He alleges that he was not compensated for his past overpayments and was thus deprived of continuous periodic disability retirement benefits, beginning at the time that he attained retirement status. Pursuant to General Statutes § 4-142(1), the plaintiff contends, he need not and may not seek permission to sue from the state claims commissioner.

3 A copy of the memorandum is attached as "Exhibit B" to the plaintiff's objection to the motion to dismiss, which was filed on November 13, 2009.

The plaintiff alleges violation of his rights under 42 U.S.C. § 1983 (2003)⁴ and the fourteenth amendment to the United States constitution⁵ (count one) and violations of article first, § 20 of the constitution of Connecticut⁶ (count two) against each defendant in his or her individual and official capacities. The plaintiff also alleges discrimination in violation of General Statutes § 31-290a⁷ (count three), breach of contract (count four), unjust enrichment (count five); violation of General Statutes § 38a-815 et seq. (CUIPA) (count six); and violation of General Statutes § 42-110b et seq. (CUTPA) (count seven) against each defendant in his or her official capacity. He seeks the following relief: compensatory and/or actual damages, jointly and severally against all defendants as to all counts of the complaint for his health care premium related costs and overpayments; attorney fees, emotional and/or punitive damages pursuant to 42 U.S.C. §§ 1983 and 1988, ⁸ CUTPA, CUIPA and/or the common law; and injunctive relief preventing the defendants from requiring the plaintiff and similarly situated class members to pay higher health insurance premiums than is provided in their state contracts.

4 Title forty-two U.S.C. § 1983 (2003) provides, in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

5 The fourteenth amendment to the United States constitution provides, in pertinent part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

6 Article first, § 20 of the constitution of Connecticut provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the national origin."

7 General Statutes § 31-290a prohibits employer discrimination due to an employee's filing of a claim for workers' compensation benefits and provides a right of civil action for such discrimination.

8 Title forty-two U.S.C. § 1988 (2003) provides, in pertinent part: "(b) Attorneys fees. In any action or proceeding to enforce a provision of [section] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorneys fees, unless such action was clearly in excess of such officer's jurisdiction."

The defendants' bases for their motion to dismiss are that counts one and two, and counts four through seven against the state and against the named defendants in their official capacities are barred by the doctrine of sovereign immunity; and counts one and two against them in their individual capacities are barred by their statutory immunity pursuant to § 4-165 and their qualified immunity. Although the defendants do not raise this ground in their motion, in their memorandum in support of the motion they argue that the injunctive relief sought by the plaintiff in counts one and two against them in their official capacities is also barred due to mootness. The defendants do not move to dismiss count three.⁹

9 Count three alleges violations of General Statutes § 31-290a, which prohibits employer discrimination due to an employee's filing of a claim for workers' compensation benefits and provides a right of civil action for such discrimination, against the state and the named defendants in their official capacities.

DISCUSSION I Sovereign Immunity

"Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, "a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006), aff'd, 102 Conn.App. 315, 926 A.2d 38 (2007).

"[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Wilcox v. Webster Ins. Co., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).

A Sovereign Immunity Has Been Waived Pursuant to General Statutes § 4-142(1)

The defendants argue that sovereign immunity bars all counts, except count three, because the state and state employees in their official capacities cannot be sued without the state's consent. They contend that the plaintiff cites no exceptions to sovereign immunity and must seek permission to sue the state through the office of the claims commissioner.

The plaintiff responds that, because the claims commissioner does not have subject matter jurisdiction to hear the claims that are listed in General Statutes § 4-142(1), which are claims for the periodic payment of disability, pension, retirement or other employment benefits, the Superior Court must be the proper forum. He contends that the Superior Court is a court of general jurisdiction that derives its powers from General Statutes § 52-1, ¹⁰ each count of the complaint falls within § 4-142(1), and the only reasonable way to interpret §§ 4-142 and 52-1 together is to find that the Superior Court has jurisdiction. Connecticut courts give deference to agencies' interpretations of statutes and, in 2003, the claims commissioner's website stated that the commissioner lacks jurisdiction over claims that are excepted by statute. The plaintiff argues that the necessary implication of § 4-142 is that it waives sovereign immunity as to the defendants in their official capacities for cases falling within § 4-142(1). He argues that the legislature could not have intended to confer a right without a remedy, he cannot bring this suit before the claims commissioner, it would be unreasonable and illogical to prevent him from bringing suit in Superior Court, and if there was no remedy for the rights listed in § 4-142(1) the due process of law and fundamental fairness would be violated.

10 General Statutes § 52-1 provides: "The Superior Court may administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action so that legal and equitable rights of the parties may be enforced and protected in one action. Whenever there is any variance between the rules of equity and the rules of the common law in reference to the same matter, the rules of equity shall prevail."

The defendants counter that the plaintiff's claims do not fall under § 4-142(1). They contend that if that section is extended to state retiree overpayments, then it could be extended beyond the scope of the exception to any claims growing out of state employment. Other statutes applicable to state employee benefits show that claims are limited to payment of benefits and do not encompass claims for overpayment of premiums.¹¹ Alternatively, the defendants argue that even if the claims do fall within § 4-142(1), this fact does not mean that the Superior Court has jurisdiction. If all claims falling within the exceptions could be decided by the Superior Court, the doctrine of sovereign immunity would be rendered inapplicable. They contend that the fact that there are specific exceptions listed in §§ 4-142(2)¹² and 4-142(3)¹³ suggests a legislative intent to provide a separate exception when immunity is waived.

11 As examples, the defendants cite General Statutes §§ 5-155a(j) and (k), which provide for claims for pension benefits to be submitted to the state employees retirement commission and allows the claimant to request that a denial be reviewed and reconsidered by the commission and thereafter decided as a contested case in accordance with chapter fifty-four, the Uniform Administrative Procedure Act.

12 General Statutes § 4-142(2) prevents the claims commissioner from hearing "claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts."

13 General Statutes § 4-142(3) prevents the claims commissioner from hearing "claims for which an administrative hearing procedure otherwise is established by law."

1 The necessary implication of § 4-142(1) is that the state has waived sovereign immunity.

"That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut." (Internal quotation marks omitted.) Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). "Sovereign immunity may be waived only through a statute . . . Any statutory waiver of immunity must be narrowly construed." (Citation omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). "We have held that 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 states's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 309, 875 A.2d 498 (2005).

"[S]tatutes in derogation of sovereignty should be strictly construed in favor of the state . . . [When] there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Citations omitted, internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 11-12, 950, A.2d 1247 (2008).

"Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute . . . Moreover, [a]lthough it is a critical prerequisite to any court's involvement in a case, we repeatedly have held that, when a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 689, 4 A.3d 248 (2010). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Id., 694. "The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter . . . Accordingly, whether a division of the Superior Court . . . can exercise jurisdiction depends upon whether there exists a valid and cognizable cause of action, or matter, over which jurisdiction has not been vested in some other court." (Citations omitted; internal quotation marks omitted.) Id., 695.

"Chapter 53 of the General Statutes, § 4-141 [through § 4-165b], creates the office of claims commissioner and establishes the procedure for redressing claims arising from the actions of the state and its officers and employees." Spinello v. State, 12 Conn.App. 449, 453, 531 A.2d 167 (1987). "[T]he entire legislative scheme of chapter [fifty-three], which authorizes claims against the state, makes clear that it is the claims commissioner, pursuant to legislation, that can waive sovereign immunity." (Internal quotation marks omitted.) Capers v. Lee, 239 Conn. 265, 268 n. 3, 684 A.2d 696 (1996). The term "claim" is defined in § 4-141 as: "a petition for the payment or refund of money by the state or for permission to sue the state."

"The claims commissioner has authority to hear all claims against the state except those expressly enumerated in § 4-142."¹⁴ Chotkowski v. State, 240 Conn. 246, 264, 690 A.2d 368 (1997). The Chotkowski case concerned a former state employee, who claimed lump sum damages for wages lost due to an alleged breach of contract. The court found that this was not a "claim that he was improperly deprived of a periodic payment of the kind enumerated" in § 4-142(1). Id. Because the plaintiff's claims were based on contract law, and other available remedies applied only to discrimination claims, the court stated that it was "not persuaded . . . that the plaintiff had an available administrative remedy within the meaning of § 4-142(3). Accordingly . . . the plaintiff's claim requesting permission to bring [an] action against the state was not barred by § 4-142." Id., 265.

14 General Statutes § 4-142 provides: "There shall be a Claims Commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes."

"[I]n order for a court to conclude that a statute waives sovereign immunity by force of necessary implication, it is not sufficient that the claimed waiver reasonably may be implied from the statutory language. It must, by logical necessity, be the only possible interpretation of the language. Therefore, although a conclusion that statutory language is ambiguous ordinarily allows a court, pursuant to [General Statutes] § 1-2z,¹⁵ to consult extra textual sources in interpreting a statute, that avenue is unavailable when a court, in examining statutory language to determine whether a statute waives sovereign immunity by necessary implication, concludes that the language is ambiguous as to waiver. Ambiguous language, by definition, is susceptible to more than one reasonable interpretation . . . In other words, in this context, the existence of uncertainty in a statute with regard to waiver is not an ambiguity but, rather, an answer. Thus . . . we must interpret any uncertainty as to the existence of a waiver as preserving sovereign immunity." (Citation omitted; internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, CT Page 22343 389-90, 978 A.2d 49 (2009).

15 General Statutes § 1-2z provides: "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 dues not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered."

The statutes comprising the Workers' Compensation Act show that the plaintiff's health insurance coverage is one of his employee benefits because the term "compensation," as it is defined in the act, ¹⁶ includes payments made under the provisions of General Statutes § 31-284b; and § 31-284b requires that "any employer who provides accident and health insurance . . . coverage for any employee . . . shall provide to the employee equivalent insurance coverage . . . while the employee is eligible to receive or is receiving compensation." Under § 4-141, a "claim" is "a petition for the payment or refund of money by the state or for permission to sue the state" and the plaintiff's claim is a petition for the refund of premiums that he allegedly overpaid in order to retain his health insurance, which is an employment benefit. His claim is, therefore, of the type listed in § 4-142(1) and is excepted from the jurisdiction of the claims commissioner. Because jurisdiction has not been vested in some other court and "[t]he fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter;" In re Matthew F., supra, 297 Conn. 695; "by logical necessity . . . the only possible interpretation of the [statutory] language;" Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 390; is that the Superior Court has jurisdiction over claims falling within § 4-142(1). The necessary implication of § 4-142(1) is that the state has waived sovereign immunity for claims of the types listed in that section.

16 General Statutes § 31-275 provides, in pertinent part: "As used in this chapter, unless the context otherwise provides:
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`Compensation' means benefits or payments mandated by the provisions of this chapter, including, but not limited to . . . payments made under the provisions of section 31-284b . . . or any adjustment in benefits or payments required by this chapter."

2 The doctrine of ejusdem generis is inapplicable.

The plaintiff argues that, under the doctrine of ejusdem generis, all five exceptions to § 4-142 must be taken to be of the same kind and interpreted in a similar manner to each other and in a manner that recognizes legislative consent to bring suit directly in Superior Court. The defendants counter that ejusdem generis does not apply to the exception listed in § 4-142(1) because, while §§ 4-142(2) and (3) reference claims that are subject to court suits or administrative proceedings, § 4-142(1) does not contain general language following those exceptions, but is worded in specific terms preceding them.

"Ejusdem generis . . . is merely an axiom of statutory construction, not an inviolate rule of law." State v. Grant, 294 Conn. 151, 161, 982 A.2d 169 (2009). "The principle of ejusdem generis applies when (1) the [clause] contains an enumeration by specific words; (2) the members of the enumeration suggest a specific class; (3) the class is not exhausted by the enumeration; (4) a general reference [supplements] the enumeration . . . and (5) there is [no] clearly manifested intent that the general term be given a broader meaning than the doctrine requires." (Internal quotation marks omitted.) Id., 159 n. 12. In other words: "When people list a number of particulars and add a general reference like `and so forth' they mean to include by use of the general reference not everything else but only others of like kind. The problem is to determine what unmentioned particulars are sufficiently like those mentioned to be made subject to the [clause's] provisions by force of general reference." (Internal quotation marks omitted.) 24 Leggett St. Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 297, 685 A.2d 305 (1996). For example, the doctrine of ejusdem generis was not controlling regarding the issue of whether a certain gun, which could be operated without gunpowder, was excepted from a statute that defined a firearm as "any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged." (Internal quotation marks omitted.) State v. Grant, supra, 294 Conn. 157. Even though all of the guns listed in the statute are operated by means of gunpowder, the court stated that "a gun capable of firing a shot is a firearm irrespective of whether the gun discharges the shot by use of gunpowder or by some other means." Id., 157-58.

The exceptions to § 4-142 are: "(1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes." These exceptions comprise an enumeration of claims in a class of exceptions to the jurisdiction of the claims commissioner, but there is no evidence that the class is not exhausted by the enumeration, and there is no general term supplementing the list. Because a general term that supplements the enumeration, which must be considered in order to apply the principle of ejusdem generis, is not present in § 4-142, it is not possible to apply the principle to the facts of this case.

3 Legal precedent supports the conclusion that sovereign immunity is waived by § 4-142(1).

The plaintiff additionally contends that the following cases are support for his position that sovereign immunity has been waived by § 4-142(1): he argues that in Simso v. State, Superior Court, judicial district of Hartford, Docket No. 020819172 (April 7, 2003, Sheldon, J.), the Superior Court recognized that the state has waived sovereign immunity and consented to suit for cases within the exceptions of § 4-142(1). He contends that in Sedlock v. Shelton Board of Education, Superior Court judicial district of Hartford, Docket No. 064021061 (November 21, 2008, Langenbach, J.T.R.) [ 46 Conn. L. Rptr. 651], the court stated that there is a split of authority as to whether § 4-142 waives sovereign immunity for all claims falling within its five exceptions. His position is that the Supreme Court indirectly decided the issue in Capers v. Lee, supra, 239 Conn. 271-72, where it stated that, when bringing claims that fell within § 4-142, the plaintiff could bring his claim in Superior Court without a waiver of sovereign immunity. The plaintiff contends that because of these precedential cases, if he had brought this suit before the claims commissioner, the state would have moved to dismiss for lack of subject matter jurisdiction.

The defendants counter that the cases cited by the plaintiff do not show that § 4-142(1) constitutes a waiver of sovereign immunity. They argue that the basis of the court's consent to suit in Simso v. State, supra, Superior Court, Docket No. 020819172, was the claims commissioner's failure to authorize it pursuant to his power to grant permission to sue in court for claims within his jurisdiction. They contend that in Sedlock v. Shelton Board of Education, supra, Superior Court, Docket No. 064021061, the court had no occasion to decide the issue of sovereign immunity and held that the plaintiff's claim, which was for compensatory and consequential damages for a state agency's denial of the plaintiff's purchase of retirement credit, was not within the exceptions to § 4-142. The defendants claim that the present case is similar because this plaintiff is also seeking a lump sum payment of compensatory damages for his overpayments of health insurance premiums. The defendants contend that in Sedlock v. Shelton Board of Education, supra, Superior Court, Docket No. 064021061, the court only cited the introductory language from Simso v. State, supra, Superior Court, Docket No. 020819172, and then relied on two cases taking a contrary view. They argue that in Capers v. Lee, supra, 239 Conn. 271-72, the court acknowledged only that claims not within the exceptions to the claims commissioner's jurisdiction were required to be filed with the claims commissioner.

The court agrees with the plaintiff and those cases cited by him that the state has waived sovereign immunity with the exceptions under 4-142(1). The reasoning of Simso v. State, supra, Superior Court, Docket No. 020819172 is persuasive. The better interpretation of the Supreme Court's statement that "a claimant falling outside the exceptions of § 4-142 must bring a claim [with the claims commissioner] before commencing an action;" Capers v. Lee, supra, 239 Conn. 272; is that a claimant falling within the exceptions of § 4-142 may commence a proceeding in the Superior Court without bringing a claim with the claims commissioner.

B Sovereign Immunity Has Been Waived as to the State and the Defendants in Their Official Capacities for Counts One and Two 1 Count one against the state and the named defendants in their official capacities is not barred by sovereign immunity.

In count one, the plaintiff alleges violations of 42 U.S.C. § 1983 and the fourteenth amendment to the United States constitution. See footnotes 4 and 5. "A state, as an entity having immunity under the eleventh amendment to the United States Constitution, is not a `person' within the meaning of [42 U.S.C.] § 1983 and thus is not subject to suit under [42 U.S.C.] § 1983 in either federal court or state court . . . This rule also extends to state officers sued in their official capacities." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 311. "[The] rule is that the exception to sovereign immunity for actions in excess of statutory authority or pursuant to an unconstitutional statute, applies only to actions seeking declaratory or injunctive relief, not to those seeking monetary damages." Id., 321.

"State courts have concurrent jurisdiction with federal courts over [42 U.S.C.] § 1983 claims." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Maine v. Thiboutot, 448 U.S. 1, 3 n. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). "To state a cause of action under [42 U.S.C.] § 1983, a plaintiff must allege that a deprivation of federal rights has occurred under color of any statute, ordinance, regulation, custom or usage . . . [T]he touchstone of [a] [42 U.S.C.] § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the [c]onstitution . . . In addition, [42 U.S.C.] § 1983 also authorizes suit for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official [decision-making] channels." (Internal quotation marks omitted.) Paul v. New Haven, 48 Conn.App. 385, 390, 710 A.2d 798 (1998).

"To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must [prove] (1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of . . . law." Broadnax v. City of New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).

Count one falls under "the exception to sovereign immunity for actions . . . pursuant to an unconstitutional statute;" Miller v. Egan, supra, 265 Conn. 321; "ordinance, regulation, custom or usage;" Paul v. New Haven, supra, 48 Conn.App. 390; because: the plaintiff seeks only injunctive relief from the state defendants in their official capacities; the plaintiff has alleged that he was "deprived . . . of a federal right;" Broadnax v. City of New Haven, 294 Conn. 299; he is a disabled state retiree; the state and the named defendants, acting under an official policy, required the plaintiff to pay more for health insurance premiums than state retirees who are not disabled; and the plaintiff continued to pay higher premiums even after the defendants changed their policy to correct this dissimilar treatment. The record contains a 2007 memorandum showing that disabled retirees were placed on a different insurance plan than other retirees. See footnote 3. The defendants have submitted the affidavit of Kemp¹⁷ which states that the plaintiff has been on the same insurance plan as other state retirees since June 1, 2008. The defendants do not dispute that the plaintiff paid higher premiums than non-disabled retirees prior to June 1, 2008.

17 Helen M. Kemp identifies herself in the affidavit as the division counsel and assistant director of the retirement services division of the office of the state comptroller.

Sovereign immunity does not bar count one and the court will not dismiss count one against the state and the named defendants in their official capacities.

2 Count two against the state and the named defendants in their official capacities is not barred by sovereign immunity.

In count two, the plaintiff alleges violations of article first, § 20, of the Constitution of Connecticut. See footnote six. "[B]ecause the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state." Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004).

"In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 328, A.2d 1089 (1998). "The sovereign immunity enjoyed by the state is not absolute, and our Supreme Court has recognized limited exceptions to the doctrine. These are: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted.) Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, 392, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).

"Employer" is defined in the Workers' Compensation Act, § 31-275 et seq., as: "any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . ." Section 31-290a of the act provides, in pertinent part: "(a) No employer who is subject to the provisions of this chapter shall . . . in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter. (b) Any employee who is so discharged or discriminated against may . . . Bring a civil action in the superior court for the judicial district where the employer has its principal office for . . . payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a eviction shall be awarded reasonable attorneys fees and costs to be taxed by the court . . ."

The first exception to sovereign immunity: "when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity;" Tuchman v. State, supra, 89 Conn.App. 753; applies because, pursuant to § 31-290a, the legislature has expressly provided a cause of action and waived immunity for claims of discrimination due to a plaintiff's status as a workers' compensation recipient. The defendants do not dispute that the plaintiff paid higher premiums than non-disabled retirees prior to June 1, 2008. Sovereign immunity does not bar count two as against the state and the named defendants in their official capacities.

C Sovereign Immunity Has Been Waived for Counts Four and Five Pursuant to § 4-142(1)

Count four is the plaintiff's claim that the state and the defendants in their official capacities have breached their contract with the plaintiff by requiring him to pay health care premiums in excess of what is contractually required. Count five is a claim that the state and the defendants in their official capacities have been unjustly enriched by receiving monetary gain that was not bargained for or earned, which benefits the state inequitably.

The remedy for each of these claims would be a court order requiring that the plaintiff be reimbursed for his alleged overpayments. These counts are, in effect, claims for reimbursement of periodic payments made for employment benefits. As discussed in part IA, sovereign immunity for such claims has been waived by § 4-142(1). Sovereign immunity does not bar counts four and five against the state and the named defendants in their official capacities and the motion to dismiss as to these counts as to the named defendants in their official capacities will be denied.

D Sovereign Immunity Has Not Been Waived for Counts Six and Seven

Count six consists of the plaintiff's allegations that the defendants' acts, which required the plaintiff to make higher premium payments, amount to purposeful misrepresentation of pertinent facts pertaining to insurance policy provisions and health insurance coverage, in violation of CUIPA. In count seven, the plaintiff alleges that the wilful, reckless and/or negligent misrepresentations of the defendants constituted deceptive and unfair acts and business dealings in violation of state policies and law, in violation of CUTPA.

"`The process for determining whether a private right of action is created under a statute is set forth in Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, [249], 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997), overruled on other grounds by Batte-Holmgren v. Comm. Of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). In Napoletano, the court held that when a statute does not expressly create a private right of action, it will be presumed that the legislature did not intend to create one. In order to overcome that presumption, the party asserting the existence of the private cause of action must demonstrate that his claims satisfy a three-part test. Under the Napoletano test the court must examine: "First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" . . . Rollins v. People's Bank Corp., 283 Conn. 136, 142 (2007); see also [ Asylum Hill Problem Solving Revitalization Association. v. King, 277 Conn. 238, 247]. In order to overcome the presumption that no private right is implied, it must be demonstrated that "no factor weighs against affording an implied right of action and [that] the balance of factors weighs in [the plaintiff's] favor." . . . Rollins v. People's Bank Corp., supra, 283 Conn. . . . 142, 925 A.2d 315. "In examining these three factors, each is not necessarily entitled to equal weight. Clearly, these factors overlap to some extent with each other, in that the ultimate question is whether there is sufficient evidence that the legislature intended to authorize [the plaintiff] to bring a private cause of action despite having failed expressly to provide for one" . . . Id.' Palmieri v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 07 5012326 (January 28, 2009, Tobin, J.).

"Our appellate courts have not ruled on whether a private right of action exists under CUIPA. HL Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 441 n. 7, 955 A.2d 565 (2008). `While the Superior Courts which have considered the question are divided, a majority have determined that no private right of action exists.' Union Street Furniture Carpet, Inc. v. The Hartford Financial Services Group, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4002621 (April 12, 2006, Tobin, J.). `The consensus of these courts may be summarized as follows: 1) there is no express authority under CUIPA for private causes of action; 2) CUIPA is not ambiguous; 3) the regulatory scheme under CUIPA contemplates investigation and enforcement actions to be taken by the insurance commissioner; and 4) consequently there is no private cause of action under CUTPA.' Tomonto v. Progressive Northern Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001543 (March 8, 2005, Tobin, J.). See Palmieri v. Nationwide Mutual Ins. Co., supra, Docket No. CV 07 5012326 (January 28, 2009, Tobin, J.); Szlachetka v. Mullen, Superior Court, judicial district of New Britain, Docket No. CV 02 0513409 (February 25, 2003; Dunnell, J.) (both cataloguing Superior Court decisions declining to recognize a private right of action under CUIPA).

"`A number of Superior Courts have taken particular note of the express private right of action provided under CUTPA and the absence of similar provisions under CUIPA.' Palmieri v. Nationwide Mutual Ins. Co., supra, Docket No. CV 07 5012326. Additionally, `[a] person who feels that he or she has been harmed by a CUIPA violation is not without remedy, but that remedy needs to be pursued as a CUTPA [claim].' (Internal quotation marks omitted.) Baroni v. Western Reserve Life Assurance Co. of Ohio, Superior Court, judicial district of Middlesex, Docket No. CV 99 0087965 (September 29, 1999, Gordon, J.)." Smith v. Geico General Insurance Co., Superior Court, judicial district of New London, Docket No. 085006746 (April 07, 2009, Martin, J.). Our Supreme Court has "held that a private cause of action exists under CUTPA to enforce alleged CUIPA violations." Lees v. Middlesex Ins. Co., 219 Conn. 644, 654, 594 A.2d 952 (1991), aff'd, 229 Conn. 842, 643 A.2d 1282 (1994).

General Statutes § 42-110c provides, in relevant part: "(a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state." "By virtue of General Statutes § 42-110c, a municipal housing authority is exempted from liability under CUTPA when it leases subsidized rental units to low income tenants." Connelly v. Housing Authority of New Haven, 213 Conn. 354, 365, 567 A.2d 1212 (1990). Municipal housing authorities are not subject to CUTPA because of pervasive state and federal regulation of housing authorities. Id., 361-62. It should be noted that Connelly v. Housing Authority of New Haven, supra, 213 Conn. 365 did not hold that municipalities are never subject to CUTPA. Nevertheless, there are courts that have held that CUTPA does not apply in various circumstances. For example, in Danbury v. Dana Investment Corp., 249 Conn. 1, 18-20, 730 A.2d 1128 (1999), rev'd on other grounds, 257 Conn. 48, 776 A.2d 438 (2001), where CUTPA violations were alleged as a special defense, the court found that CUTPA does not apply to the methods that a municipality uses to assess real estate and collect unpaid taxed that it is owed. "No court in Connecticut has found a political subdivision of the state liable under CUTPA." Capital Property Associates v. Capital City Economic Development Authority, Superior Court, judicial district of Tolland, Docket No. X07 CV 044001293 (January 18, 2006, Sferrazza, J.) [ 40 Conn. L. Rptr. 590]. "Most trial courts have held that CUTPA is inapplicable to the actions of a governmental entity, as a matter of law, even if that conduct, performed by a private person, might be considered to have commercial overtones." Id.

In the present case, the record contains Kemp's affidavit; see footnote 17; in which she states that: Wyman, the comptroller of the state, administers the health plan and disability retirement system for state employees in accordance with the provisions and sections of General Statutes, chapter 34¹⁸ (which includes General Statutes §§ 3-111 through 3-123gg) and General Statutes § 5-259;¹⁹ the state employees retirement commission supervises the state employee disability retirement system pursuant to General Statutes, chapter 66²⁰ (which includes General Statutes §§ 5-152 through 5-192mm); and the plaintiff remained on active employee health coverage after retirement pursuant to General Statutes § 31-284b.²¹

18 Chapter 34 sets out the powers and duties of the comptroller.

19 General Statutes 5-259 provides, in pertinent part: "(a) The Comptroller, with the approval of the Attorney General and of the Insurance Commissioner, shall arrange and procure a group hospitalization and medical and surgical insurance plan or plans for (1) state employees."

20 Chapter 66 is the State Employees Retirement Act.

21 General Statutes § 31-284b provides, in pertinent part: "(a) In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury. As used in this section, `income' means all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions and `employee welfare plan' means any plan established or maintained for employees or their families or dependents, or for both, for medical, surgical or hospital care benefits."

If there is a private right of action for the plaintiff's alleged CUIPA claim, it must be enforced under CUTPA. Lees v. Middlesex Ins. Co., supra, 219 Conn. 654. It is not necessary to decide whether a private right of action exists, because the plaintiff's CUTPA claim is barred. The actions that the plaintiff alleges are violations of CUIPA and CUTPA were administered by regulatory boards or officers "acting under statutory authority of the state"; § 42-110c; and under pervasive state regulation of employee benefits. Connelly v. Housing Authority of New Haven, supra, 213 Conn. 361-62.

Section 42-110c, provides an exception to liability for CUTPA claims because it states, in relevant part: "(a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state." Accordingly under § 42-110c(a), the state has not waived sovereign immunity as to the plaintiff's claims of violations of CUIPA (count six) and CUTPA (count seven), and the motion to dismiss those counts must be granted due to lack of subject matter jurisdiction.

II The Issues Are Not Moot

The defendants contend that injunctive relief is unavailable because any potential relief would be moot due to the fact that, since June 1, 2008, the plaintiff has paid the same insurance premiums as other retired state employees not receiving workers' compensation. The plaintiff alleges that he overpaid insurance premiums from the time that he attained retirement status, until the sometime after January 1, 2008, when the defendants began prospectively enrolling retirees receiving workers' compensation benefits in the same health insurance plan as retirees not receiving workers' compensation benefits.

"Mootness . . . implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn.App. 213, 229-30, 962 A.2d 167 (2009). "In determining mootness, the dispositive question is whether a successful [suit] would benefit the plaintiff or defendant in any way . . . In other words, the ultimate question is whether the determination of the controversy will result in practical relief to the complainant." (Citation omitted; internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006).

"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 counter affidavits . . . 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 counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).

In paragraph one of his amended complaint, the plaintiff alleges that he and other similarly situated disabled retirees were treated differently from non-disabled retirees in violation of collective bargaining contracts. It is undisputed that disabled retirees were, at least for some period of time, required to pay more for health insurance than non-disabled retirees. In her affidavit; see footnote 17; Kemp testifies that, due to a policy change that took effect on January 1, 2008, "[a]ll state of CT employees receiving [w]orkers [c]ompensation benefits arising from [s]tate of Connecticut employment and who were eligible for [r]etirement [h]ealth [i]nsurance by the virtue of being awarded a disability retirement benefit on or after January 1, 2008 transition directly to [r]etirement [h]ealth [i]nsurance" and "employees who had retired prior to January 1, 2008 and who were receiving [w]orkers [c]ompensation and enrolled in active employee health coverage were transitioned to retirement health coverage between January 1, 2008 and June 1, 2008." Thus, the affidavit shows that disabled retirees currently have the same health plan as non-disabled retirees. It does not necessarily follow that disabled retirees currently pay the same premiums as non-disabled retirees.

Because the defendants have submitted "only evidence that fails to call [the plaintiff's] allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations" in his complaint. Conboy v. State, supra, 292 Conn. 652. The defendants have not provided the court with evidence showing that the defendant and members of the proposed class will not benefit from the issuance of an injunction to compel equal premium payments or a monetary award to reimburse them for past overpayments. On the face of the record the court does not lack subject matter jurisdiction over any of the counts due to mootness.

III The Named Defendants in Their Individual Capacities Have Statutory Immunity Pursuant to § 4-165 for Count Two.

The defendants argue that the court lacks subject matter jurisdiction as to all counts which are alleged against the defendants in their individual capacities (counts one and two), because they have statutory immunity pursuant to § 4-165.²² They contend that the plaintiff's only factual allegations are that Wyman and Woodruff supervised the award and payment of disability retirement benefits to the plaintiff and that, in November of 2007, they directed that those receiving retirement benefits who had filed workers' compensation claims begin to pay the same for health insurance as those who had not filed claims. The defendants assert that in order to fall under the exception in § 4-165 for recklessness, there must be an allegation as egregious as the misuse of governmental authority for personal gain or the extraneous manipulation of government authority in order to justify erroneous conduct. The defendants argue that their acts were not sufficiently wanton, reckless or malicious to fall under the exception. They contend that only count one alleges a federal claim pursuant to 42 U.S.C. § 1983 for violation of the federal constitution and, in Shay v. Rossi, supra, 253 Conn. 181-82, the Supreme Court found that § 4-165 provided state officials with immunity in their individual capacities for claims of violations of the state constitution and 42 U.S.C. § 1983. The defendants argue that statutory immunity pursuant to § 4-165 implicates subject matter jurisdiction and is grounds for a motion to dismiss. A 1984 Attorney General's opinion letter, which is in the record, ²³ concluded that § 31-284b provided for such retirees to have the same health insurance, but not the same premiums, as active employees. The defendants contend that there is no case law suggesting that § 31-284b violates equal protection. Moreover, the defendants remedied any violation by adopting the change from active employee to retiree health insurance, and this act rebuts the allegations that they personally participated in the violation and acted with discriminatory purpose as decision makers.

22 General Statutes § 4-165 provides, in pertinent part: "(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her 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."

23 A copy of the letter is attached to the defendants in memorandum in support of their motion to dismiss, which was filed on September 16, 2009.

The plaintiff responds that statutory immunity is not available for alleged 42 U.S.C § 1983 violations, because the federal supremacy clause supersedes all theories of immunity under state law. He argues that statutory immunity is not applicable to counts three through seven, because those counts implicate the defendants only in their official capacity.

The defendants do not move to dismiss count three, and counts four, five, six and seven are alleged as to the state and the defendants only in their official capacities. We need not, therefore, consider whether statutory immunity applies to those claims.

A Count One

"[W]hen sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law." Sullins v. Rodriguez, supra, 281 Conn. 133. "[C]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced." (Internal quotation marks omitted.) Id., 133-34. The facts in the record show that the named defendants, in their individual capacities, do not have statutory immunity pursuant to § 4-165 as to count one.

B Count Two

Section 4-165 provides, in pertinent part: "(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment." "As with sovereign immunity, § 4-165 provides state officers and employees with qualified immunity . . . This type of qualified statutory immunity involves immunity from suit and is intended to permit courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits . . . When, as here, the motion to dismiss raises the issue of statutory immunity under § 4-165, the court must examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously." (Citations omitted; internal quotation marks omitted.) Kelly v. Albertsen, supra, 114 Conn.App. 606.

"It is well settled that the defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities;" Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). "[B]y its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities." (Internal quotation marks omitted.) Id., 129. "[Section] 4-165 was intended to grant state employees immunity where and because the state may be sued . . . Because it abrogates the previously existing common law rights of redress against state employees, the statute must be strictly construed." (Citation omitted; internal quotation marks omitted.) McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981).

In Tuchman v. State, supra, 89 Conn.App. 761, our Appellate Court held that a state official's alleged conduct was within the scope of his employment and did not rise to the level of wanton, reckless, or malicious conduct. In that case, the plaintiffs, a trucking company and its owners, alleged "violations of both state and federal law, including, inter alia, violations of 42 U.S.C. § 1983 et seq., the fifth and fourteenth amendments to the United States Constitution, and violations of the due process and equal protection clauses of the constitution of Connecticut." Id., 749. The plaintiffs alleged that an employee of the Department of Environmental Protection acted pursuant to a statute that had not been enforced during the seven years after its enactment. Id., 748. The state employee denied the plaintiffs' application for a permit to transfer hazardous waste from one transportation vehicle to another (transshipment) and issued a notice of violation to the plaintiffs. Id. At the time that the state employee issued the violation notice, the department had never issued a transshipment permit to any business. Id. The court decided that the employee had not acted in excess of his authority, stating that the "complaint [was] devoid of any factual allegations that, if proven, would reasonably support their allegation that [the employee] acted in excess of his statutory authority." Id., 761. The employee was entitled to statutory immunity and the Superior Court had "properly dismissed the claims against [him] in his individual capacity on statutory immunity grounds." Id., 764-65.

In its analysis of whether the employee had acted wantonly, recklessly or maliciously, the court stated: "Our Supreme Court recently observed that it has never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, [the court has] stated: In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Id., 764. Regarding this language, our Supreme Court stated: "We see no reason to give a different meaning to that phrase as used in § 4-165." Shay v. Rossi, supra, 253 Conn. 181-82.

In Shay v. Rossi, supra, 253 Conn. 172, the defendant state officials' conduct was wanton, reckless or malicious and "sufficiently outside the normal scope of the defendants' statutory authority to invoke the doctrine" of statutory immunity pursuant to § 4-165. In that case, the defendants, who were conducting an investigation of possible child neglect and abuse, initiated proceedings to remove children from their parents and persisted in their attempts even after four physicians stated that there was no abuse. Id., 141-62. The court stated: "The same facts and allegations that led us to conclude that the defendants' conduct was in excess of their statutory authority, lead us to conclude that the defendants could be found to have acted wantonly, recklessly or maliciously." Id., 182. "[T]he critical factual allegations in the plaintiffs' complaint [were] that: (1) the neglect and abuse petitions were filed without probable cause and in the face of overwhelming evidence of the absence of abuse and neglect; (2) the defendants' refusal to withdraw the petitions and their insistence that [one of the parents] undergo in-home supervision and counseling were contrary to the evidence in the record and the advice of department staff, and (3) the defendants' conclusion that neglect and abuse of the . . . children had been confirmed was without foundation, unreasonable, arbitrary, wilful, wanton reckless and malicious, and `designed to vindicate and legiti[mize] their handling of the Shay case which was, from the outset, unlawful, uncaring, and unnecessary.'" Shay v. Rossi, supra, 253 Conn. 173.

Employers have statutory authority to administer insurance coverage of employees eligible to receive workers' compensation pursuant to § 31-284b. See footnote 21. The record includes an opinion letter from the Connecticut attorney general, which is addressed to Wyman and dated March 3, 2000, ²⁴ showing that § 31-284b requires that retired employees receiving workers' compensation benefits must receive benefits at least equal to the benefits they were receiving when injured. Viewed in the light most favorable to the non-moving plaintiff, the allegations and the facts in the record show that the plaintiff was required to pay higher premiums for his benefits than retirees not receiving workers' compensation. Even if, by requiring the plaintiff to pay more, the defendants used their authority pursuant to § 31-284b incorrectly, it does not follow that they exceeded the scope of their authority. None of the facts in the record show that the defendants acted recklessly, wilfully or maliciously.

24 A copy of the letter is attached to the plaintiff's objection to the motion to dismiss, which was filed on November 24, 2009.

The defendants have statutory immunity from suit in their individual capacities for the allegations that they violated the Connecticut constitution (count two) and the motion to dismiss must be granted on this ground.

IV The Named Defendants in Their Individual Capacities Have Qualified Immunity for Count One.

The defendants contend that they have qualified immunity in their individual capacities as to count one, which alleges violations of 42 U.S.C. § 1983. They contend that qualified immunity is available to them because they did not violate the plaintiff's established right and it was reasonable for them to believe that they did not because the only law on the topic of retired state employees receiving workers' compensation benefits is that they should be treated equally with active employees. They argue that the plaintiff merely alleges that [under the terms of his state contract] he was [required to be] treated equally with active employees, and his allegation that he was wrongfully required to pay too much for health insurance does not show that the decision makers acted with a discriminatory purpose, which is necessary to show an equal protection violation. Qualified immunity provides, they argue, immunity from suit as well as immunity from liability and may be raised by a motion to dismiss.

The plaintiff argues that qualified immunity is not properly resolved with a motion to dismiss because, under federal law, it must be raised as a defense and necessarily requires some determination of the merits of the claim. He contends that qualified immunity is not available to the defendants because they were, or reasonably should have been, aware of the plaintiff's constitutional right to equal protection and no actual or direct involvement of the individual defendant is necessary for liability. The plaintiff's position is that the personal involvement of a supervisor may be established by showing that he or she directly participated in the violation, failed to remedy the violation after being informed of it by report or appeal, created a policy or custom under which the violation occurred, was grossly negligent in supervising subordinates who committed the violation, or was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated.

"[A] claim for qualified immunity from liability for damages under [42 U.S.C.] § 1983 raises a question of federal law . . . and not state law. Therefore, in reviewing these claims of qualified immunity we are bound by federal precedent, and may not expand or contract the contours of the immunity available to government officials . . . Furthermore, in applying federal law in those instances where the United States Supreme Court has not spoken, we generally give special consideration to decisions of the Second Circuit Court of Appeals . . . Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (Citation omitted; internal quotation marks omitted.) Morgan v. Bubar, 115 Conn.App. 603, 625, 975 A.2d 59 (2009).

"The United States Supreme Court has repeatedly expressed that `to state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of a right secured by the [c]onstitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.'" Tuchman v. State, supra, 89 Conn.App. 762, quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

"Because the defense of qualified immunity is designed to relieve government officials of the burdens of litigation as well as of the threat of damages, summary judgment is encouraged as a device for disposing of claims barred by qualified immunity." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). "[T]he United States Supreme Court directly addressed the question of whether a finding of qualified immunity in the context of a [42 U.S.C.] § 1983 action compels immunity from suit as well as from liability . . . [T]he court stated that [t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." (Citation omitted; internal quotation marks omitted.) Morgan v. Bubar, supra, 115 Conn.App. 609-10.

"`The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation.' Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002). Our Supreme Court has stated that determining `[w]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action . . . assessed in light of the legal rules that were clearly established at the time it was taken.' (Citations omitted; internal quotation marks omitted.) Ham v. Green, 248 Conn. 508, 520, 729 A.2d 740, cert. denied, 528 U.S. 929, 79 S.Ct. 326, 145 L.Ed.2d 254 (1999)." Johnson v. Rell, Superior Court, judicial district of Hartford, Docket No. 2930193 (July 1, 2008, Dubay, J.), aff'd, 119 Conn.App. 730, 990 A.2d 354 (2010).

"The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment to the United States [c]onstitution is essentially a direction that all persons similarly situated should be treated alike . . . A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person . . . [When a plaintiff] does not allege selective treatment based upon his race, religion, or any intentional effort by [the] defendants to punish him for exercising his constitutional rights, [the plaintiff] must demonstrate that [the] defendants maliciously singled [him] out . . . with the intent to injure him." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392-93, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). "[W]hen a government official acts as the moving force behind a deprivation of a plaintiff's constitutional rights, this is sufficient for liability under [42 U.S.C.] § 1983 . . . [t]he requisite causal connection [for liability under [42 U.S.C.] § 1983] can be established not only by some kind of direct personal participation in the deprivation, but{ also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional injury." Id., 409.

Qualified immunity has been properly raised by the defendants in this motion to dismiss because qualified immunity protects government officials both from damages and from having to litigate. Ying Jing Gan v. City of New York, supra, 996 F.2d 532. The record contains an opinion letter from the Connecticut attorney general, dated July 24, 1984; see footnote 23. The letter was written in response to the state comptroller's request for advice regarding the rights of a retired state employee who was receiving workers' compensation benefits. The letter concluded that, pursuant to General Statutes § 31-284b, "insurance coverage must be maintained at the level provided for active employees." See footnote 21.

The record contains a second opinion letter from the Connecticut attorney general, dated March 3, 2000, which contradicts the 1984 opinion letter, stating that, pursuant to § 31-284b, retired employees receiving workers' compensation benefits "must receive benefits at least equal to what they were receiving when they were injured," rather than benefits equal to the level provided to current active employees. The 2000 letter also states that providing better coverage, such as "the normal retirees coverage" would not be unlawful. See footnote 24.

Additionally, the record contains the November 14, 2007 memorandum, which advised that retirees receiving workers' compensation may pay substantially more for health coverage than similarly situated retirees who are not receiving workers' compensation. See footnote 3.

According to the memorandum, the practice of keeping workers' compensation retirees on the active insurance plan was in effect when there was no cost to state employees for health insurance. The memo concludes by setting forth a new policy, under which workers' compensation retirees shall be placed on the same insurance plan as other retirees, effective "on and after January 1, 2008."

We must consider whether the defendants' actions in placing the plaintiff on an insurance plan for which the premiums were higher constituted "selective treatment . . . based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Thomas v. West Haven, supra, 249 Conn. 392-93. Nothing in the record shows that the defendants acted with bad faith, based their insurance policy decisions on an impermissible consideration of the plaintiff's status as a disabled person, or desired to punish him for exercising his right to workers' compensation. To the contrary, the record shows that two state comptrollers, including Wyman, sought the advice of the state attorney general to ensure that they were providing adequate insurance to the plaintiff and others situated like him. The difference in premium payments appears, from facts in the record, to have arisen from a change in benefits that required state employees to begin making contributions for their insurance premiums, where there had previously been no cost to the employees.

We must also consider the "objective legal reasonableness of the action . . . assessed in light of the legal rules that were clearly established at the time it was taken;" Ham v. Green, supra, 248 Conn. 520; to determine whether the state actors knew or reasonably should have known that their acts would cause others to inflict constitutional injury. Thomas v. West Haven, supra, 249 Conn. 409. It is objectively reasonable for the commissioners of various state entities to administer employee benefits in accordance with policies set by the state comptroller. It is also objectively reasonable for the state comptroller to rely on opinions of the state attorney general in setting such policies. Nothing in the record shows that the defendants knew or reasonably should have known that their acts would inflict or cause others to inflict constitutional injury.

The court will grant the motion to dismiss as to count one as to the claim of federal constitutional violations (count one) since the defendants in their individual capacities have qualified immunity.

CONCLUSION

The court will therefore (1) deny the motion as to count one (violation of 42 U.S.C. § 1983 (2006) and the fourteenth amendment to the United States constitution), count two (violation of article first, § 20, of the Constitution of Connecticut), count four (breach of contract) and count five (unjust enrichment) as to the state and the named defendants in their official capacities facts on the record show that the court lacks subject matter jurisdiction due to the doctrine of sovereign immunity; (2) grant the motion as to count six (violation of General Statutes § 38a-815 et seq. (CUIPA)) and count seven (violation of General Statutes § 42-110b et seq. (CUTPA)) as to the state and the named defendants in their official capacities because, on the face of the record, the court lacks subject matter jurisdiction due to the doctrine of sovereign immunity; (3) grant the motion as to the allegations in count two (violation of article first, § 20, of the Constitution of Connecticut) as to the named defendants in their individual capacities because facts in the record show that they are entitled to statutory immunity; and (4) grant the motion as to the allegations in count one (violation of 42 U.S.C. § 1983 and the CT Page 22363 fourteenth amendment to the United States constitution) as to the named defendants in their individual capacities because facts in the record show that they are entitled to qualified immunity.