Bruno v. Travelers Cos.

• Decision Date: 02 May 2017
• Docket Number: AC 38284
• Citation: 172 Conn.App. 717,161 A.3d 630
• Court: Connecticut Court of Appeals
• Parties: Lisa BRUNO v. The TRAVELERS COMPANIES, et al.

172 Conn.App. 717

161 A.3d 630

Lisa BRUNO

v.The TRAVELERS COMPANIES, et al.

AC 38284

Appellate Court of Connecticut.

Argued January 11, 2017

Officially released May 2, 2017

Lisa Bruno, self-represented, the appellant (plaintiff).

Stephen E. Goldman, with whom, on the brief, was Jonathan E. Small, for the appellees (named defendant et al.).

Keller, Mullins and Harper, Js.

MULLINS, J.

The plaintiff, Lisa Bruno, appeals from the judgment of the trial court, rendered in favor of the defendants, The Travelers Companies and The Travelers Home and Marine Insurance Company,¹ after the court (1) granted the defendants' second motion to strike counts three through nine of the plaintiff's amended complaint on the ground of absolute immunity,² and (2) granted the defendants' motion for summary judgment on counts one and two on the grounds that those counts were brought outside of the two year limitation period contained in the parties' contract of insurance.³ On appeal, the plaintiff claims that the court's judgment was improper because (1) "absolute immunity implicates the court's subject matter jurisdiction," and, therefore, the court erred in allowing the defendants to raise that issue via a motion to strike, (2) the defendants were not immune to suit on the basis of an absolute privilege, and (3) the plaintiff's claims were not time barred.

After review, we conclude that the litigation privilege provides an absolute immunity from suit and, thus, implicates the trial court's subject matter jurisdiction.⁴

As such, the plaintiff's causes of action against the defendants are barred. We further conclude that the court should have dismissed the plaintiff's original complaint, rather than permit her to replead, after it determined that the doctrine of absolute immunity applied to her entire complaint. Accordingly, the form of judgment is improper, and we, therefore, reverse the judgment of the trial court and remand the matter with direction to render a judgment of dismissal.

The trial court set forth the following relevant facts in its memorandum of decision as to the defendants' first motion to strike. "The plaintiff and ... Stephen Bruno were divorced in 2008 by order of the Danbury Superior Court .... [In her complaint,] [t]he plaintiff alleges that on February 24, 2014, a hearing was held in Danbury Superior Court in her dissolution of marriage action on a postjudgment motion brought by her former husband involving court-ordered alimony and support payments. The plaintiff alleges that an employee or representative of [the defendants] ... appeared at this hearing in response to a subpoena issued by her former husband's attorney. The plaintiff further alleges that the defendants' employee made certain statements at this hearing and produced two letters issued by the defendants that he ‘caused to be entered into evidence,’ both of which, the plaintiff claims, were defamatory to her. The plaintiff alleges that the defendants intentionally and wrongfully allowed their employee to testify at the hearing and produce the letters in question, and that these actions have given rise to several causes of action against them for damages.

"The plaintiff claims that as a result of the defendants' actions or, alternatively, as a result of the defendants' failure to contest the subpoena and take actions to block her former husband's efforts to compel their employee's testimony, they are liable to her .... The plaintiff seeks compensatory, general, punitive, and consequential damages from the defendants for these alleged transgressions."

On the basis of the aforementioned letters and the employee's testimony, both of which the plaintiff believed contained defamatory statements about her, the plaintiff commenced this action against the defendants in seven counts: (1) defamation by libel per se, (2) violation of the Connecticut Insurance Information and Privacy Protection Act, General Statutes § 38a–975 et seq., (3) negligent infliction of emotional distress, (4) intentional infliction of emotional distress, (5) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq., (6) vicarious liability, and (7) negligence.

The defendants, thereafter, filed a motion to strike each count that had been filed against them on the ground that they were entitled to absolute immunity due to the applicability of the litigation privilege. The plaintiff then filed a responsive pleading. Subsequently, the defendants filed a reply memorandum in which they argued, in part, that the court's subject matter jurisdiction was implicated by the doctrine of absolute immunity. On January 5, 2015, the court granted the defendants' motion to strike each count of the complaint on the ground of absolute immunity, concluding that the litigation privilege applied. The court, however, did not address the issue of subject matter jurisdiction.

Given that the court had granted the defendants' motion to strike, the plaintiff exercised her option to replead and filed an amended complaint pursuant to Practice Book § 10–44. In her amended complaint, she alleged the following causes of action against the defendants: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) violation of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a–815 et seq., (4) defamation by libel per se, (5) violation of the Connecticut Insurance Information and Privacy Protection Act, General Statutes § 38a–975 et seq., (6) intentional infliction of emotional distress, (7) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq., (8) vicarious liability, and (9) negligence.

In response to the amended complaint, the defendants filed a motion for judgment on all counts of the stricken complaint and requested, in the alternative, that the court strike counts three through nine of the amended complaint on the ground that it failed to cure the deficiencies in her original complaint. The defendants also requested summary judgment on the two new counts of the amended complaint, set forth as counts one and two, on the basis that they were time barred by the limitation set forth in the defendants' contract of insurance with the plaintiff.⁵ The court granted the motion and rendered judgment in favor of the defendants. This appeal followed.

The dispositive issue raised by the plaintiff concerns her claim that absolute immunity implicates the trial court's subject matter jurisdiction. She contends that the court erred by not ordering the defendants to file a motion to dismiss rather than permit them to raise the issue of absolute immunity and the court's subject matter jurisdiction in a motion to strike. We agree with the plaintiff's contention that absolute immunity implicates the trial court's subject matter jurisdiction. See Tyler v. Tatoian , 164 Conn.App. 82, 87, 137 A.3d 801 ("the doctrine of absolute immunity concerns a court's subject matter jurisdiction" [internal quotation marks omitted] ), cert. denied, 321 Conn. 908, 135 A.3d 710 (2016) ; Perugini v. Giuliano , 148 Conn.App. 861, 873, 89 A.3d 358 (2014) (same); see also Stone v. Pattis , 144 Conn.App. 79, 95–100, 72 A.3d 1138 (2013) (claim for negligent infliction of emotional distress against certain attorney-defendants for communications made while defending against federal lawsuit was barred by absolute immunity because communications were absolutely privileged; trial court properly dismissed claim for lack of subject matter jurisdiction).

We disagree, however, on what was the appropriate action for the trial court to take once this issue, or a doctrine implicating subject matter jurisdiction, was raised. Here, once the defendants raised the issue of absolute immunity, based on the application of the litigation privilege, and the court then determined that the plaintiff's initial complaint was barred by the doctrine of absolute immunity, the court should have dismissed the case against the defendants, essentially treating the motion to strike as a motion to dismiss.⁶ See Practice Book § 10–30 (a) (1) ("[a] motion to dismiss shall be used to assert ... lack of jurisdiction over the subject matter"); see generally Branford v. Monaco , 48 Conn.App. 216, 219 n.4, 709 A.2d 582 (although "[t]he defendants asserted their claim of lack of subject matter jurisdiction as a special defense ... [a] motion to dismiss is the proper procedural device to raise a claim of lack of subject matter jurisdiction"), cert. denied, 245 Conn. 903, 719 A.2d 900 (1998).

"[S]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... and a judgment rendered without subject matter jurisdiction is void. ... Further, it is well established that a reviewing court properly may address jurisdictional claims that neither were raised nor ruled on in the trial court." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski , 123 Conn.App. 791, 798, 3 A.3d 183 (2010). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc. , 263 Conn. 616, 624–25, 822 A.2d 196 (2003).

"As the doctrine of absolute immunity concerns a court's subject matter jurisdiction ... we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. ... The question before us is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity." (Internal quotation marks omitted.) Tyler v. Tatoian , supra, 164 Conn.App. at 87, 137 A.3d 801.

"Connecticut has long...