Berger, Lehman Associates, Inc. v. State
| Decision Date | 17 July 1979 |
| Citation | 422 A.2d 268,178 Conn. 352 |
| Court | Connecticut Supreme Court |
| Parties | BERGER, LEHMAN ASSOCIATES, INC. v. STATE of Connecticut. |
Bourke G. Spellacy, Hartford, with whom were John C. King, Hartford and, on brief, Thomas J. Shortell, Hartford, for appellant (plaintiff).
William J. White, Asst. Atty. Gen., with whom, on brief, was Carl R. Ajello, Atty. Gen., for appellee (defendant).
Before LOISELLE, BOGDANSKI, LONGO, PETERS and SIDOR, JJ.
The plaintiff, Berger, Lehman Associates, Inc., and the defendant, the state of Connecticut, entered into a contract for services on or about October 1, 1970. The plaintiff performed the work called for by the contract, and submitted its final billing which the state refused to pay. The plaintiff brought suit against the state for payment of the amount billed plus damages. The referee to whom the parties submitted the dispute concluded that Lehman's suit against the state was barred by sovereign immunity, but in a supplemental memorandum alternatively decided that, even if the state could be sued, it would still prevail because its method of computing the final bill was the proper one. The plaintiff on appeal claims that the trial court erred, inter alia, in concluding that the plaintiff's action was not encompassed within the permission to sue the state granted by § 4-61 of the General Statutes. 1
The facts as found by the trial court sufficient for the purposes of this decision 2 are as follows: The plaintiff, a New York corporation licensed to engage in professional engineering in Connecticut, and the state, through the commissioner of transportation by the deputy commissioner of the bureau of planning and research, entered into a contract for services, entitled "Agreement Contracting Engineering Services for a Study and Report for a Corridor Location for the Relocation of Connecticut Route 66 from the Vicinity of the Meriden-Middlefield Turnpike to Easterly of the Connecticut River in Portland and Improvement of Connecticut Route 9 from the Vicinity of the South Junction of Connecticut Route 17 in Middletown to the Vicinity of the Sebethe River in Cromwell." The contract provisions describe the plaintiff's work under the agreement as including the following: development and analysis of alternate plans for both routes; coordination and solicitation of the views of interested governmental and private groups and individuals; submission of recommendations and a feasibility study, and of a preliminary and a final report presenting data, analyses conclusions and recommendations; and assistance and evaluation in response to public hearings. The plaintiff's report was to include details in conformance with certain manuals and documents, and certain information to be used by the state in requesting approval of the corridor location from the federal highway administration. Its report analyzed alternative locations for the route 66 corridor and alternative means of improving route 9, and recommended a choice in each case. The sole object of the plaintiff's report was to provide sufficient data for the state's decision-makers to determine the next course of action with regard to the projected transportation facilities. In addition, the contract provided "(t)hat the Secretary of State of Connecticut or his successors in office is appointed as agent for service of process for any action arising out of or as a result of this Agreement; such appointment to be in effect throughout the life of this Agreement, including any supplements thereto, and six (6) years thereafter."
Section 4-61 of the General Statutes is an express waiver of sovereign immunity limited to actions brought against the state pursuant to certain types of contracts involving the construction of public works between the state and other parties. 3 The crucial phrase in the statute is the one defining what kind of contract comes within the law's waiver: "a contract ... for the design, construction, repair or alteration of any state highway, bridge, building or other public works." The critical word "design" was added to the statute by Public Acts 1969, No. 429. The plaintiff asserts that "design" includes the work described in and performed under its contract with the state, and that the state has therefore consented to suit under that contract. We do not agree.
It is the well-established and recently reaffirmed law of this state that the sovereign is immune from suit unless the state, by appropriate legislation, consents to be sued. State v. Chapman, 176 Conn. 362, 364, 407 A.2d 987 (1978); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); State v. Hartford, 50 Conn. 89, 90-91, 47 A. 622 (1882). 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 " Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871, 876 (1975).
Under that rule of construction, the plaintiff must prove in this case that there is a precise fit between the narrowly drawn reach of the relevant statute, § 4-61, and the contractual language upon which the plaintiff depends. In other words, did the plaintiff contract to "design" public works for the state?
The word "design" is not defined in the statute. We note that the word is given content by the dictionary as follows: "plans and drawings necessary for the construction of (a building ...) which the workmen have to follow out." 3 Oxford Dictionary (...
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State v. Lombardo Bros. Mason Contractors, Inc., Nos. 18462
...presume that the legislature meant to exclude such contracts from the operation of the statute) ... Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 357, 422 A.2d 268 (1979) (construing term design in § 4–61 narrowly and noting that ... [t]here is no expression of legislative intent......
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Mahoney v. Lensink
...v. Burns, supra; and its scope must be confined strictly to the extent the statute provides. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979)...." Owner-Operators Independent Drivers Assn. of America v. State, supra, 209 Conn. at 685, 553 A.2d In reliance on......
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State v. Lombardo Bros. Mason Contractors, Inc.
...that the legislature meant to exclude such contracts from the operation of the statute) . . . Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 357, 422 A.2d 268 (1979) (construing term design in § 4-61 narrowly and noting that . . . [t]here is no expression of legislative intent to ......
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The Conscience of the State: History, Procedure & Precedents of the Office of the Claims Commissioner
...The executive branch is likewise not the appropriate branch to waive the state's immunity. See Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 422 A.2d 268 (1979). 3 See, e.g., Lipwich v. Frankel, 44 Conn. App. 651, 691 A.2d 1099, cert. denied, 241 Conn. 907, 695 A.2d 538 (1997). 4......