Steven Barichko v. Edgar Gregg, Jr. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 108.00)

FACTS

This action arises from an alleged motor vehicle accident involving the plaintiff, Steven Barichko.   On March 10, 2009, the plaintiff filed a six-count complaint against Edgar Gregg, Jr.,¹ Peter H. Gargiulo, Sr., and the Connecticut Department of Transportation (department).   The only count at issue is count four, which alleges the following.

On or about February 20, 2007, at approximately 12:48 p.m., the plaintiff was a passenger in a motor vehicle traveling south on Pulaski Highway through its intersection with Marshall Lane in Ansonia, Connecticut.   The vehicle was owned by the department and operated by Gargiulo, who was acting “as the agent, servant, or employee of the [department] ․ within the scope of his agency and/or employment.”   At the same time and place, a vehicle driven by Gregg, traveling west on Marshall Lane, failed to stop for a stop sign and collided with the plaintiff's vehicle causing the plaintiff serious injuries.   The plaintiff alleges in count four that the collision was caused by Gargiulo's negligence.

On May 21, 2009, the state moved to intervene as a co-plaintiff pursuant to the Workers' Compensation Act, General Statutes §§ 31–275 through 31–355.   On the same date, the state filed an intervening complaint and notice of statutory lien, claiming a lien upon any judgment or settlement received by the plaintiff for the amount of workers' compensation payments the state is obligated to pay.

On August 3, 2009, Gargiulo and the department (defendants) filed an answer and special defenses ² admitting that at the time of the collision, the plaintiff was a passenger in a vehicle owned by the state and that it was operated by Gargiulo in “the course of his employment” with the department.   The defendants denied that either Gargiulo or the department was negligent.

On August 5, 2009, the defendants moved to dismiss count four for a lack of subject matter jurisdiction on the grounds that the negligence claim against Gargiulo is barred by General Statutes § 4–165 and the negligence claim against the department is barred by sovereign immunity.   In support of their motion, the defendants submitted a memorandum of law.   The plaintiff then filed an objection and memorandum of law on January 3, 2011.   The matter was argued at the short calendar on January 3, 2011.

DISCUSSION

Practice Book § 10–31(a) provides in pertinent part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the subject matter ․” “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).  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ 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 ․” (Citations omitted;  internal quotation marks omitted.)  Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “If, however, the defendant submits ․ no proof to rebut the plaintiff's jurisdictional allegations ․ the plaintiff ․ may rest on the jurisdictional allegations therein.”  (Citation omitted.)  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   In such a case, “a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Id., 651.   “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

Before the court can address the defendants' grounds for dismissal, it must first determine whether the plaintiff alleges negligence against Gargiulo in his individual capacity or in his official capacity as a state employee.   “Because an action against state employees in their official capacities is, in effect, an action against the state ․ the only immunity that can apply is the immunity claimed by the state itself—sovereign immunity.”  (Citation omitted.)  Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006).   On the other hand, “ § 4–165 ³ applies only to state officers and employees sued in their personal capacities, and is therefore inapplicable to the determination of whether ․ [the state] is immune from suit.”  Hanna v. Capital Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002).   Here, the plaintiff does not specify in the complaint whether the claim against Gargiulo is brought against him individually or in his official capacity as a state employee.

“[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)  BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010).   Our Supreme Court has stated that “the essential nature and effect of the proceeding,” Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956), determines whether an action is against the state or against an individual.   Moreover, “to determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in Somers and as explained further in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975).   If all four criteria are satisfied, the action is deemed to be against the state ․ The criteria are:  (1) a state official has been sued;  (2) the suit concerns some matter in which that official represents the state;  (3) the state is the real party against whom relief is sought;  and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010).   With respect to the first prong, “[t]he essential characteristics of a ‘public office’ are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government.”  Spring v. Constantino, supra, 568.

“The court may ․ look to the complaint and the plaintiff's arguments in determining whether the plaintiff's claim is brought against [the defendant] in [his or] her individual or official capacity.”   Allstate Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 10 6004056 (November 12, 2010, Martin, J.).  “When a complaint is unclear as to whether a state actor is being sued in their official or individual capacity, the court may look to the summons to aid in the determination.”   Hanton v. Walker, Superior Court, judicial district of New Haven, Docket No. CV 09 5029721 (March 29, 2010, Keegan, J.), citing Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666 (“the identities of the parties are determined by their description in the summons”), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002).

Here, the complaint does allege that Gargiulo was operating the vehicle owned by the state as the agent, servant, or employee of the state acting within the scope of his agency or employment.   The summons lists only Gargiulo's personal address, which is where he was served with process, and does not identify him as a state employee or in any other official capacity.   See Allstate Ins. Co. v. State, supra, Docket No. CV 10 6004056 [51 Conn. L. Rptr. 83] (absence of employment information on summons and service at personal address supports conclusion that complaint must be construed as against defendant in her individual capacity);  Ager v. Scavello, Superior Court, judicial district of New London, Docket No. CV 09 5012634 (February 18, 2010, Cosgrove, J.) (same);  cf.   Sienkiewicz v. Ragaglia, Superior Court, judicial district of Fairfield, Docket No. 03 0401770 (April 3, 2007, Matasavage, J.) (listing of attorney general's office as defendants' addresses on summons supports conclusion that action was brought against them in their official capacities).   Additionally, the allegations of the complaint simply fail to satisfy the Somers criteria.   The department's inclusion as a named defendant in this action cannot be attributed to any action against Gargiulo in his official capacity, but rather, is a consequence of the plaintiff's separate action against the department that is based on common law negligence and vicarious liability.   Based on the foregoing, the defendants have correctly construed the plaintiff's claim against Gargiulo as alleging negligence in his individual capacity.

I

IMMUNITY UNDER GENERAL STATUTES § 4–165

The defendants move to dismiss the negligence claim against Gargiulo on the ground that § 4–165 affords Gargiulo immunity from personal liability because he was a state employee who was acting within the scope of his employment when the accident occurred.   The plaintiff responds that Gargiulo is not immune from liability because § 4–165 is superceded by General Statutes § 31–293a ⁴ of the Workers' Compensation Act, which, according to the plaintiff, “expressly authoriz[es] a cause of action against a state employee by a fellow state employee in the limited circumstance where the damage is caused by the negligent operation of a motor vehicle.”   The plaintiff also argues that § 4–165 is inapplicable because the defendants failed to meet their burden of proving that Gargiulo is “personally liable” for the plaintiff's damages.

“[Section] 4–165 was intended to grant state employees immunity where and because the state may be sued ․” (Internal quotation marks omitted.)   McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981).   Under the statute, “state employees may not be held personally liable for their negligent actions performed within the scope of their employment.   This provision of statutory immunity to state employees has a twofold purpose.   First, the legislature sought to avoid placing a burden upon state employment.   Second, § 4–165 makes clear that the remedy available to plaintiffs who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state ‘under the provisions of this chapter,’ namely, chapter 53 of the General Statutes, which governs the office of the claims commissioner.” ⁵  Miller v. Egan, supra, 265 Conn. 319.  “Stated differently, the statute, while affording a person the potential right to sue the state, denies that person his right of action against the state's employees.” ⁶  Spring v. Constantino, supra, 168 Conn. 570.

Our Supreme Court has expressly defined the relationship between § 4–165(a) and § 31–293a by holding that “the exception granted by ․ § 31–293a to all employees [permitting suit against a fellow employee who negligently operates a motor vehicle] must give way to the immunity granted specifically to state employees by ․ § 4–165.”  McKinley v. Musshorn, supra, 185 Conn. 624.   In McKinley, the defendant state employee struck and injured the plaintiff while operating a truck owned by the state.   After the trial court dismissed the plaintiff's complaint on the ground that his action against the defendant was barred by § 4–165, the plaintiff, on appeal, argued that his claim was not barred because § 31–293a superceded the immunity provided by § 4–165.   The McKinley court rejected this argument.   Noting that § 31–293a was enacted subsequent to § 4–165, the court reasoned that “absent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls.   Consequently, § 31–293a does not control this issue.

Also without merit is the plaintiff's claim that § 4–165 is unavailable to the defendants.   Contrary to the plaintiff's assertion that the defendants “failed to meet [their] burden” of proving that Gargiulo is personally liable for the plaintiff's damages, no such burden exists because the plaintiff brings an action against Gargiulo in his individual capacity.   Therefore, § 4–165 is directly implicated.  Hanna v. Capital Region Mental Health Center, supra, 74 Conn.App. 268.

Because it is not in dispute that Gargiulo was a state employee acting within the scope of his employment when the accident occurred, § 4–165 immunizes Gargiulo from the plaintiff's negligence claim.   Accordingly, the motion to dismiss count four, to the extent the plaintiff alleges a claim against Gargiulo in his individual capacity, is granted.

II

SOVEREIGN IMMUNITY

The defendants next move to dismiss the plaintiff's negligence claim against the department on the ground that it is barred by sovereign immunity.   The defendants contend that, notwithstanding General Statutes § 52–556,⁷ the state has not waived its immunity against the plaintiff's claim because the plaintiff is a state employee, and as such, his only recourse is through the Workers' Compensation Act. The plaintiff argues to the contrary that § 52–556 “clearly” operates as a waiver of sovereign immunity to his claim.   The plaintiff asserts that General Statutes §§ 31–293 and 31–293a “clearly provide for causes of action like that set forth in the Forth Count of the complaint as an exception to the exclusivity provisions of the [Workers' Compensation] Act.” The plaintiff also maintains that the state's claim of a lien upon any potential judgment or settlement “is a binding admission that the Fourth Count of the Plaintiff's Complaint asserts a viable cause of action against them.”

“The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state's immunity from liability or suit.”   (Internal quotation marks omitted.)  Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010).  “In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the rights depends.”  (Internal quotation marks omitted.)  Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987).  “The modern rationale for the doctrine, however, rests on the more practical ground that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property.”  (Internal quotation marks omitted.)  Vejseli v. Pasha, 282 Conn. 561, 569–70, 923 A.2d 688 (2007).

“[T]he sovereign immunity enjoyed by the state is not absolute.”  (Internal quotation marks omitted.)  Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).  “It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases.”  Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).  “When the state waives that immunity by statute, however, a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed ․” (Internal quotation marks omitted.)  Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979).

“[Section] 52–556 provides a cause of action against the state when any person is injured through the negligence of any state employee while operating a motor vehicle owned and insured by the state.”  Babes v. Bennett, 247 Conn. 256, 260, 721 A.2d 511 (1998).  “This waiver of sovereign immunity, substantially unchanged since its enactment in 1927;  see Public Acts, 1927, c. 209;  permits recovery against the state on a vicarious liability theory for certain negligent acts by its agents, a common-law liability borne by private employers.”  Sullivan v. State, 189 Conn. 550, 555 n.7, 457 A.2d 304 (1983).  “Because the language of § 52–556 expressly waives the state's immunity from suit based on common-law negligence, it appears that the legislature intended § 52–556 to incorporate the principles governing existing common-law negligence actions, and that the statute was not intended to create a separate statutory action to which different principles of liability and damages would apply.”  Babes v. Bennett, supra, 263–64.

Our Supreme Court has stated, however, that “[t]here is no cause of action against the state on the ground of vicarious liability under § 52–556 when brought by a state employee or his representative.”  (Emphasis added.)   Sullivan v. State, supra, 189 Conn. 555 n.7. It reasoned that “[w]hen the legislature enacted § 52–556 in 1927, granting a cause of action to the general public against the state for negligent operation of motor vehicles by state employees, the state already had submitted itself to certain claims by its employees under the [then] Workmens' Compensation Act.” (Emphasis added.)   Id. Specifically, “[w]hen the state, as an employer under the act ․ agreed to participate in the compensation program, it was immune from liability ‘to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of his death resulting from injury so sustained ․’ General Statutes § 5341 (Rev. to 1918).”  Id.;  compare General Statutes § 31–284(a).⁸  Accordingly, our Supreme Court concluded:  “Since the state had already expressly delineated its liability to employees [under the act], we decline to read the subsequent enactment of § 52–556 as expanding the rights of those employees to include a second cause of action against the state ․ We do not view the subsequent revisions of the workers' compensation statutes ․ as affecting our conclusion that the legislature did not intend § 52–556 to authorize an additional cause of action for state employees or their representatives who are eligible for workers' compensation.”  Id.

Based on the foregoing, the defendants correctly argue that § 52–556 does not waive sovereign immunity as to state employees who pursue a right of action against the state for injuries sustained through the negligence of another state employee when operating a motor vehicle owned and insured by the state.   Nevertheless, their motion to dismiss cannot be granted because there is no evidence that the plaintiff was, in fact, a state employee at the time of the accident.   The plaintiff does not allege any facts as to his own employment in the complaint.   While the plaintiff has advanced several arguments suggesting that he was, like Gargiulo, a state employee, such an implication is not “clear, deliberate and unequivocal” as is required of a binding judicial admission.  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004).   Consequently, because the court is required to construe the allegations in a manner most favorable to the plaintiff;  Conboy v. State, supra, 292 Conn. 651;  and indulge every presumption favoring jurisdiction;  Connor v. Statewide Grievance Committee, supra, 260 Conn. 443;  the court cannot presume that the plaintiff was a state employee for the purposes of this motion.   On this basis alone, the court is not without subject matter jurisdiction.⁹  The motion to dismiss count four as to the plaintiff's negligence claim against the department is therefore denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. The plaintiff withdrew the action as to Gregg on August 19, 2009..  FN1. The plaintiff withdrew the action as to Gregg on August 19, 2009.

FN2. The defendants raise two special defenses to the fourth count.   The first special defense asserts that the negligence claim against Gargiulo is barred by General Statutes § 4–165.   The second special defense asserts that the negligence claim against the department is barred by sovereign immunity and “the exclusivity of the workers' compensation act.”.  FN2. The defendants raise two special defenses to the fourth count.   The first special defense asserts that the negligence claim against Gargiulo is barred by General Statutes § 4–165.   The second special defense asserts that the negligence claim against the department is barred by sovereign immunity and “the exclusivity of the workers' compensation act.”

FN3. Section 4–165(a) provides:  “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.”.  FN3. Section 4–165(a) provides:  “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.”

FN4. Section 31–293a provides in pertinent part:  “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle ․” (Emphasis added.).  FN4. Section 31–293a provides in pertinent part:  “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle ․” (Emphasis added.)

FN5. “The procedure for claims that must proceed through the claims commissioner is well delineated.”  Miller v. Egan, supra, 265 Conn. 319.  “An individual having a liability claim for which a state employee is immune pursuant to ․ § 4–165 may present it as a claim against the state to the claims commissioner.   General Statues § 4–165.  ‘When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim ․’ General Statutes § 4–160(a).”   McKinley v. Musshorn, supra, 185 Conn. 621..  FN5. “The procedure for claims that must proceed through the claims commissioner is well delineated.”  Miller v. Egan, supra, 265 Conn. 319.  “An individual having a liability claim for which a state employee is immune pursuant to ․ § 4–165 may present it as a claim against the state to the claims commissioner.   General Statues § 4–165.  ‘When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim ․’ General Statutes § 4–160(a).”   McKinley v. Musshorn, supra, 185 Conn. 621.

FN6. The plaintiff does not bring a claim against the state pursuant to § 4–165.   The plaintiff does not allege in the complaint that the claims commissioner has authorized such an action as is required by § 4–160(c), and has not indicated at any point in the course of the proceedings that such authorization was granted..  FN6. The plaintiff does not bring a claim against the state pursuant to § 4–165.   The plaintiff does not allege in the complaint that the claims commissioner has authorized such an action as is required by § 4–160(c), and has not indicated at any point in the course of the proceedings that such authorization was granted.

FN7. Section 52–556 provides:  “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.”.  FN7. Section 52–556 provides:  “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.”

FN8. Section 31–284(a), which delineates the liability of employers under the modern Workers' Compensation Act, provides in pertinent part:  “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter ․”.  FN8. Section 31–284(a), which delineates the liability of employers under the modern Workers' Compensation Act, provides in pertinent part:  “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter ․”

FN9. Either the defendant or the court, sua sponte, may raise the issue of subject matter jurisdiction at a later point in the proceedings if and where the facts are further developed by evidence.  Peters v. Dept. of Social Services, supra, 273 Conn. 441..  FN9. Either the defendant or the court, sua sponte, may raise the issue of subject matter jurisdiction at a later point in the proceedings if and where the facts are further developed by evidence.  Peters v. Dept. of Social Services, supra, 273 Conn. 441.

Bellis, Barbara N., J.