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Patricia Kovacs v. Connecticut Department of Transportation
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (# 111)
This case comes to this court on the defendant Department of Transportation's (department) motion to dismiss plaintiff Patricia Kovacs's May 23, 2013 substituted complaint (complaint) for lack of jurisdiction. With the motion, which is dated June 3, 2013, the defendant filed an affidavit of Debra J. Ello, an department employee. The plaintiff filed an opposing brief, entitled “Objection to Motion to Dismiss,” on June 18, 2013. The motion was argued by the defendant on June 24, 2013. The plaintiff, who is self-represented, did not attend the argument.
FACTS
In general, in deciding a motion to dismiss for lack of jurisdiction, the court considers the allegations of the complaint in the light most favorable to finding jurisdiction, taking the facts to be those alleged in the complaint and necessarily implied by the complaint. See Johnson v. Rell, 119 Conn.App. 730, 735, 990 A.2d 354 (2010). Where the motion is accompanied by an affidavit containing undisputed facts—in this case plaintiff's husband's November 7, 2011, letter to “Commissioner, Connecticut Dept. of Transportation”—the court may consider those facts. See Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).
In this light, the facts for present purposes are as follows. On August 30, 2011, at night, Norman Barber, who is the plaintiff's husband, was driving a truck owned by the plaintiff south on Route 97 in the town of Scotland. He came to a place where the northbound lane was blocked by traffic barriers due to a recent storm. While proceeding around the barriers, Barber heard a crash and saw that a large branch of a fallen tree, about five feet above the road, had smashed into, and damaged, the truck. Barber then contacted state police officer Randy Sylvestri, who inspected the location of the incident and prepared a report about it. The incident caused $2,199.72 worth of damage to the vehicle, including damage to the driver's side windshield, vent window, windshield post, door and side mirror. On November 9, 2011, the department received a letter addressed to “Commissioner, Connecticut Dept. of Transportation” (notice) signed by Barber and dated November 7, 2011. The notice describes the incident,1 the truck Barber was driving and the damage to the truck. The notice asserts that the department was negligent for not cutting the limb back far enough and requests compensation. The notice is not signed by the plaintiff and states no intent to file a claim for the damages sustained.
DISCUSSION
A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action. See Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). A challenge to a court's subject matter jurisdiction can be raised at any time. Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012). A motion to dismiss is the appropriate means by which to assert a lack of subject matter jurisdiction. Bellman v. West Hartford, 96 Conn.App. 387, 392–93, 900 A.2d 82 (2006). “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).
A sovereign state is immune from suit, unless it consents to be sued. See Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). The doctrine of sovereign immunity implicates subject matter jurisdiction and, where it applies, is a basis for dismissing a claim. See Housatonic Railroad Co. v. Commissioner of Revenue Services, supra, 301 Conn. 274. Whether governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). Sovereign immunity may be waived only through a statute. Id. The statute at issue in this case, General Statutes § 13a–144, creates such a waiver.
The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however it is challenged. See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). That is because “it 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.) St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011).
Increasing the plaintiff's present burden, statutory waivers of sovereign immunity must be narrowly construed. See Cooper v. Delta Chi Housing Corp. of Connecticut, 41 Conn.App. 61, 64, 674 A.2d 858 (1996). The state's sovereign right not to be sued without its consent is not diminished even by statute unless a clear legislative intention that the statute have that effect appears from its explicit terms or by necessary implication. See Lacasse v. Burns, supra, 214 Conn. 468. Any doubt about the proper interpretation of a statute in derogation of sovereign immunity is to be resolved by giving it the effect which makes the least possible change in sovereign immunity. See Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 691, 894 A.2d 919 (2006); see also Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983).
The basis for the defendant's motion is that the plaintiff's claim is pursuant to § 13a–144 and that, as a prerequisite to subject matter jurisdiction, the plaintiff failed to give written notice to the state commissioner of transportation within 90 days of the incident. Although the complaint does not say so, the court finds that it is based on § 13a–144 because that statute is the only apparent basis for a highway defect suit against the department.2
Section § 13a–144 provides, in pertinent part, as follows: “No such action shall be brought ․ unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.” This notice is essential to a cause of action against the state for a highway defect.3 See Warkentin v. Burns, 223 Conn. 14, 17–18, 610 A.2d 1287 (1992). The plaintiff claims that Barber's notice should be deemed to fulfill the § 13a–144 notice requirement.4 The court finds the notice legally insufficient for two reasons. First, the statutory notice has to be given by the injured person or her or his representative. Bresnan v. Frankel, 224 Conn. 23, 27, 615 A.2d 1040 (1992). Notice by third parties, even government officials, is not enough. Warkentin v. Burns, supra, 223 Conn. 17–19 (notice to commissioner from town police and two state representatives did not fulfill statutory requirement). Barber was not the plaintiff's legal representative for purposes of the statutory notice. The court agrees with the defendant that “representative” means “legal representative,” such as an attorney or a legally appointed fiduciary. Even assuming Barber intended, and was authorized, to act as his wife's representative in writing and sending the notice, to find that he was the plaintiff's legal representative for present purposes would violate the rule that statutory waivers of sovereign immunity must be narrowly construed. See Cooper v. Delta Chi Housing Corp. of Connecticut, supra. Additionally, the notice cannot reasonably be regarded as being by the plaintiff or her representative because it does not purport to be on behalf of the plaintiff. The notice says, “I hope you will help me get my truck repaired ․ This is my only means of transportation.” The notice is Barber's, not the plaintiff's.
The second reason the notice is defective is that it does not “notify the commissioner that [the plaintiff has] filed or [intends] to file a claim against the state for damages caused by a defective condition,” as required by Warkentin v. Burns, supra, 223 Conn. 18. In addition to the above-quoted expression of hope that the commissioner will help him get his truck repaired, Barber expresses gratitude to the commissioner for his consideration. The court is constrained by the law to find this admirable courtesy, together with the rest of Barber's notice, insufficient as a notice of intent to file a claim.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted.
Cole–Chu, J.
FOOTNOTES
FN1. The notice alleges there were “two large branches, around 3” to 5,” smashing into my truck.” The complaint alleges the truck hit “a large branch.” This inconsistency is immaterial for present purposes.. FN1. The notice alleges there were “two large branches, around 3” to 5,” smashing into my truck.” The complaint alleges the truck hit “a large branch.” This inconsistency is immaterial for present purposes.
FN2. The entirety General Statutes § 13a–144 provides: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”. FN2. The entirety General Statutes § 13a–144 provides: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”
FN3. General Statutes § 13a–144 provides that the notice requirement “shall be deemed complied with” if the required contents are in a suit commenced within the required ninety days. However, the plaintiff's first complaint, in small claims court, was dated July 14, 2012, outside that period.. FN3. General Statutes § 13a–144 provides that the notice requirement “shall be deemed complied with” if the required contents are in a suit commenced within the required ninety days. However, the plaintiff's first complaint, in small claims court, was dated July 14, 2012, outside that period.
FN4. The notice, which was dated November 7, 2011 and received two days later, was given well within the required 90–day period.. FN4. The notice, which was dated November 7, 2011 and received two days later, was given well within the required 90–day period.
Cole–Chu, Leeland J., J.
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Docket No: KNLCV125014451S
Decided: September 26, 2013
Court: Superior Court of Connecticut.
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