Ahern v. City of New Haven

• Decision Date: 10 May 1983
• Citation: 459 A.2d 118,190 Conn. 77
• Court: Connecticut Supreme Court
• Parties: James AHERN et al. v. CITY OF NEW HAVEN et al.

Page 118

459 A.2d 118

190 Conn. 77

James AHERN et al. v. CITY OF NEW HAVEN et al.

Supreme Court of Connecticut.

Argued Feb. 9, 1983.

Decided May 10, 1983.

Charles G. Albom, Corp. Counsel, and Clarine N. Riddle, Deputy Corp. Counsel, New Haven, for appellants-appellees (defendants).

J. Daniel Sagarin, Milford, with whom, on the brief, was William B. Barnes, Milford, for appellees-appellants (plaintiffs).

Before PETERS, PARSKEY, SHEA, DALY and BIELUCH, JJ.

PARSKEY, Justice.

This lawsuit poses the question whether municipal employees are protected by the state indemnity statutes; General Statutes §§ 7-101a and 7-465; against claims of civil rights violations alleged to have occurred prior to the date of the enactment of the indemnity statutes.

The plaintiffs are former police officers of the New Haven police department. In this action, which was instituted in 1979, they seek indemnification for counsel fees and expenses incurred as a result of being defendants in an action pending in the United States District Court for the District of Connecticut; Abramovitz v. Ahern, U.S. District Court, District of Connecticut, 96 F.R.D. 208; wherein the federal plaintiffs have alleged infringement by the plaintiffs herein and others of their civil rights under 42 U.S.C. § 1983 and by virtue of violations of the anti-wiretapping provisions of the Omnibus Crime Control Act of 1968, 18 U.S.C. §§ 2510-2520. The federal action was commenced against the plaintiffs and the city of New Haven in May, 1977. The civil rights violations are alleged to have occurred between 1963 and 1971. At all times during this period the plaintiffs were full-time employees of the city of New Haven and were engaged in the discharge of their duties.

The trial court, upon motion by the plaintiffs, rendered an interlocutory summary judgment on liability and thereafter, upon a hearing in damages, determined the amount of reasonable counsel fees and expenses and rendered judgment accordingly, from which the defendant ¹ has appealed and the plaintiffs have cross appealed. The defendant challenges the trial court's ruling that § 7-101a was applicable to the plaintiffs' suit. The plaintiffs, in turn, assign error in the court's failure to apply § 7-465. Because we disagree both with the trial court's reasoning and the result, we reverse.

I APPLICABILITY OF SECTION 7-101a

Section 7-101a, as initially adopted in 1971, mandated that municipalities "protect and save harmless any member of any board, committee or commission of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence on the part of such member while acting in the discharge of his duties as such member." Public Acts 1971, No. 726. In 1975, this statute was extended to local council members and included protection "for alleged infringement of any person's civil rights." Public Acts 1975, No. 75-408. In 1977, the statute was amended further by extending coverage to include "any full-time municipal employee." Public Acts 1977, No. 77-399. This amendment became effective October 1, 1977.

The 1977 amendment to § 7-101a is substantive in nature. By extending coverage to full-time municipal employees it imposed on municipalities obligations which they did not have under this statute prior to its amendment. The rule of construction in such cases is that the statute is to be given prospective application only. General Statutes § 55-3. Heffernan v. Slapin, 182 Conn. 40, 51, 438 A.2d 1 (1980); Muha v. United Oil Co., 180 Conn. 720, 729, 433 A.2d 1009 (1980).

The plaintiffs argue that no new obligations were created with respect to municipal employees in 1977 because such obligations existed by virtue of the amendment to § 7-465 in 1975. We shall discuss the applicability of the latter statute below. It is sufficient to observe at this point that in May, 1977, § 7-101a indemnified only members of municipal boards, committees, councils or commissions and even these individuals were not indemnified for conduct involving infringement of civil rights which occurred before 1975. It did not then indemnify municipal employees for any type of misconduct, let alone infringement of civil rights. Therefore, to apply § 7-101a to the plaintiffs' conduct in this case would require giving the statute retroactive effect both with respect to the persons and transactions covered by the statute. ² The trial court was thus in error in premising an award to the plaintiffs on § 7-101a.

II APPLICABILITY OF SECTION 7-465

In their cross appeal the plaintiffs assert that the trial court erred in not addressing their claim to a right of indemnification under § 7-465. The unarticulated thrust of this argument is that even if the court mistakenly relied on § 7-101a, a judgment on their behalf can be supported on the basis of their indemnity rights under § 7-465.

"Section 7-465 of the General Statutes provides an indemnity to a municipal employee ... for all sums which he becomes obligated to pay by reason of the liability imposed upon him by law for damage to person or property which occurs while he is acting in the performance of his duties and within the scope of his employment." Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856 (1961). Since 1975, this indemnification has covered damages awarded for "infringement of any person's civil rights." Public Acts 1975, No. 75-408 § 3. To sustain an action against a municipality under this statute there must be a judgment against the employee under certain prescribed conditions; Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 (1972); and where applicable, proper statutory notice to the municipality. Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977). If all of the preconditions have been satisfied, then an employee who suffers a judgment can either (1) pay the judgment and request reimbursement from the municipality or (2) request the municipality to pay the judgment in his behalf. Kostyal v. Cass, supra, 163 Conn. 97-98, 302 A.2d 121.

Although the federal action was instituted after § 7-465 was amended to cover damages awarded for infringement of civil rights, the underlying wiretapping is alleged to have occurred up to a few years earlier. Since prior to 1975 the municipality would have been immune from liability for the tortious conduct of its police officers; Boorse v. Springfield Twp., 377 Pa. 109, 103 A.2d 708 (1954); Prosser, Torts (4th Ed.) § 131 p. 979; the question presented by this case is whether the statute may be applied retroactively to indemnify police officers for conduct alleged to have occurred before the effective date of the extended indemnity. We examine this question in the light of "the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction." Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

Section 7-465, although entitled "Assumption of liability for damage caused by employees," imposes no liability upon a municipality for breach of any statutory duty of its own. Thomas v. Commerford, 28 Conn.Sup. 506, 508, 268 A.2d 413 (1970). The obligation imposed by this statute is indemnification for the legal liability arising out of certain tortious conduct of the municipal employee. Id. The municipality's liability is derivative. The plaintiffs, James Ahern and Stephen Ahern, were police officers of the city of New...