George Beaupre v. State of Connecticut Department of Mental Health & Addiction Services (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

With the consent of the Claims Commissioner, the plaintiff, George Beaupre, brought this personal injury action against the Connecticut Department of Mental Health and Addiction Services (DMHAS or state) to recover damages for injuries he allegedly received when he was struck by a backhoe loader being operated by a DMHAS employee.   The plaintiff's injury occurred in 2007 in the course of his employment as a tow truck driver for Lamore's Enterprises, Inc. (Lamore's), and the plaintiff received workers' compensation benefits for medical care and lost wages.   Pursuant to General Statutes § 31–293(a), Lamore's filed a timely motion to intervene in the plaintiff's action to recover damages for the workers' compensation benefits it had provided, and that motion was granted.   The state has now moved to dismiss the intervening complaint on the ground of sovereign immunity, asserting that the legislature has not waived sovereign immunity for intervening parties under § 31–293(a).

No appellate decision directly addresses this question, and Superior Court judges have reached differing conclusions.   Plausible arguments support both Lamore's position and the state's position.   In light of the doctrine requiring that statutes abrogating sovereign immunity be construed strictly, however, the court concludes that the intervening complaint must be dismissed.

“A motion to dismiss tests ․ whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79, 74 A.3d 1242 (2013).  “[S]overeign immunity relates to a court's subject matter jurisdiction.”  (Internal quotation marks omitted.)  Id. “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ․ It has deep roots in this state and our legal system in general, finding its origin in ancient common law.”  (Internal quotation marks omitted.)  Id. “Sovereign immunity rests on the principle and on the hazard 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.)   Pamela B. v. Ment, 244 Conn. 296, 328, 709 A.2d 1089 (1998).

“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 ․ [T]his court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed ․ [When] there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity ․ When the legislature intends to waive immunity from suit or liability, it expresses that intent by using explicit statutory language ․ Accordingly, in an action seeking damages against the state, a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that ․ the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Hicks v. State, 297 Conn. 798, 801–02, 1 A.3d 39 (2010).

Whether the legislature has either expressly or by force of necessary implication waived the state's sovereign immunity presents a question of statutory construction.  General Statutes § 1–2z directs us to consider first “the text of the statute itself and its relationship to other statutes.”   In this case, the intervening plaintiff relies on General Statutes (Rev.2011) § 31–293(a),¹ which, at the time of the incident at issue in this case, provided as follows:

When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury;  and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee.   If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate ․ If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery ․ No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him ․ Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.

General Statutes § 31–293(a) does not expressly waive the state's sovereign immunity from suit or from liability with regard to third-party claims of liability.   In this case, the injured employee sought and obtained permission to sue the state pursuant to General Statutes § 4–160(a), which authorizes the Claims Commissioner, when he deems it “just and equitable,” to authorize suits against the state “on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”   Lamore's, as the intervening employer under § 31–293(a), relies on General Statutes § 4–160(c), which provides in relevant part as follows:  “The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”   It further relies on Quire v. Stamford, 231 Conn. 370, 650 A.2d 535 (1994), and Cordero v. State, Superior Court, judicial district of Hartford, Docket No. CV 09–5030511S (November 8, 2010, Scholl, J.) (51 Conn. L. Rptr. 14), rev'd on other grounds, 308 Conn. 215, 61 A.3d 514 (2013).

In Quire, the Supreme Court reversed a trial court's dismissal of an intervening employer's complaint in an action brought under General Statutes § 13a–149, the municipal highway defect statute.   The defendant in that case argued that the intervening employer was not a “traveler” upon the highway entitled to recover damages under § 13a–149.   The Supreme Court rejected that argument at least as applied in a case where the injured traveler had properly commenced an action under § 13a–149.   In such a case, § 31–293(a) “unconditionally and unambiguously authorizes reimbursement to the employer when the employer properly intervenes in the employee's action against the third party tortfeasor and damages are recovered.”  Quire v. Stamford, supra, 231 Conn. 375.   The court further observed that the Workers' Compensation Act “represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries.   Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts.”  (Internal quotation marks omitted.)  Id., 375–76.   Finally, the court stated:  “The employer's claim against a municipality under § 13a–149, brought solely for the purpose of obtaining reimbursement for the payment of workers' compensation benefits under § 13–293(a), is derived entirely from the plaintiff's right to recover damages against the municipality under § 13a–149 ․ [T]he employer who intervenes in its employee's action as authorized by § 31–293(a) does not enlarge the amount of the recovery against the municipality.”  (Citation omitted;  footnote omitted.)  Id., 376–77.

Relying on Quire and on General Statutes § 4–160(c), the Superior Court in Cordero v. State concluded that the state had waived sovereign immunity for an intervening employer whose employee had obtained permission to sue the state under § 4–160(a).  Cordero v. State, supra, 51 Conn. L. Rptr. 14.   Were Quire and § 4–160(c) the only relevant authorities, this court would be inclined to agree.   As the state points out, however, there are other precedents and statutory provisions that must be considered.

First is the well-established principle that sovereign immunity can be abrogated or limited only by a statute's express language or the force of a necessary implication, and “any doubt ” about the meaning or intent of a statute requires a court to construe it in the manner that “makes the least rather than the most change in sovereign immunity.”  (Emphasis in original;  internal quotation marks omitted.)  Hicks v. State, supra, 297 Conn. 802.   This principle was not at issue in Quire, which dealt with the municipal highway defect statute.

Second is a provision in § 31–293(a) that was not discussed in Quire or Cordero.   Referring to an action in which both the injured employee and the employer are parties, § 31–293(a) provides:  “No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him.”   The significance of this provision was demonstrated in Doucette v. Pomes, 247 Conn. 442, 724 A.2d 481 (1999).   In Doucette, the plaintiff, an employee of the Metropolitan District Commission, was injured in a motor vehicle accident while acting in the scope of his employment.   He brought an action against the tortfeasor under § 31–293(a) and his employer intervened to recover the workers' compensation benefits it had paid.   The tortfeasor admitted liability to the extent of $15,000, but her insurance company was insolvent.   The Connecticut Insurance Guaranty Association (association) was made a defendant pursuant to General Statutes § 38a–841.   Meanwhile, the plaintiff made an uninsured motorist claim under his own automobile insurance policy and settled with his insurer for $13,000, less than the uninsured motorist limits of his policy.   The plaintiff subsequently withdrew his claims in the action he had brought against the tortfeasor and the association, but the intervening employer remained in the action.   The defendant association argued that the intervening employer's recovery of workers' compensation benefits should be reduced by the limits of the plaintiff's uninsured motorist policy because he had failed to exhaust the policy limits, as required by General Statutes § 38a–845(1).   That is, because the plaintiff had failed to exhaust his uninsured motorist limits, he would be barred from recovering from the association, and the association argued that the employer should be similarly barred because its rights were derivative of the plaintiff's rights.  Id., 467.

The Supreme Court disagreed.  Doucette v. Pomes, supra, 247 Conn. 467.   Relying on the language in § 31a–293(a) that provides that no compromise by the employee or employer is binding on the other party without his or its consent, the court stated:  “Such language makes clear that the employer and the employee have separate rights under the statute ․ [U]nder the statute the employer and the employee each has a right of action which is separate from that of the other.”  Id., 468.   The court observed that the plaintiff's right of recovery under his own automobile insurance policy was a contractual remedy available only to him, not to his employer, while the employer's remedy was against the negligent driver.  Id., 469–70.   Accordingly, although the plaintiff's claim against the association would have been barred, the employer's independent claim was not.  Id.

Doucette demonstrates that while an employer's rights under § 31–293(a) are derivative of the injured employee's rights, the employer's rights are also independent of the employee's rights and not necessarily coextensive with the employee's rights.   In Doucette, in fact, the defendant association was held liable to the employer even though it was not liable to the employee.   Doucette therefore is at odds with the language in Quire that states that “the employer who intervenes in its employee's action as authorized by § 31–293(a) does not enlarge the amount of the recovery against the [defendant].”  Quire v. Stamford, supra, 231 Conn. 377.

Finally, an additional provision in the Claims Commissioner Act raises doubt about an employer's right to sue the state to recover workers' compensation benefits paid to an injured employee.  General Statutes § 4–160b provides as follows:

(a) The Claims Commissioner shall not accept or pay any surrogate claim or any claim directly or indirectly paid by or assigned to a third party.

(b) Any payment of claim made by the Claims Commissioner shall be reduced by the amount received by the claimant from any other source for such claim.

Although § 4–160b applies on its face only to claims paid by the Claims Commissioner directly, rather than to claims paid by the Comptroller pursuant to a judgment entered in an action against the state authorized under § 4–160, it evinces a legislative policy that sovereign immunity is abrogated only to the extent that other sources of compensation are not available to the claimant.   That is, the state's fisc should provide compensation to an injured party only as a last resort.   In the absence of explicit statutory language in § 31–293(a) authorizing an employer to sue the state to recover workers' compensation benefits, this legislative policy might well lead the Claims Commissioner to deny employers permission to sue the state under § 4–160(a).

Where there is an apparent ambiguity or inconsistency in statutes involving a claim against the state, the court must construe the statutes in a manner effecting the least change from sovereign immunity.   Because of the ambiguities and inconsistencies described above, the court concludes that Lamore's claim is barred by the doctrine of sovereign immunity.   Accordingly, the state's motion to dismiss the intervening complaint is granted.

BY THE COURT,

Sheila A. Huddleston, Judge

FOOTNOTES

FN1. General Statutes § 31–293 was amended effective July 1, 2011, by Public Acts 2011, No. 11–205, § 1. The 2011 changes in the statute do not affect the analysis here..  FN1. General Statutes § 31–293 was amended effective July 1, 2011, by Public Acts 2011, No. 11–205, § 1. The 2011 changes in the statute do not affect the analysis here.

Huddleston, Sheila A., J.