Keogh v. City of Bridgeport

Citation187 Conn. 53,444 A.2d 225
CourtConnecticut Supreme Court
Decision Date04 May 1982
PartiesJoan E. KEOGH, Administratrix (ESTATE OF William V. KEOGH) v. CITY OF BRIDGEPORT et al.

Bruce L. Levin, Milford, with whom, on the brief, were David M. McHugh and Joseph Biafore, Jr., Bridgeport, for appellant (plaintiff).

Louis Stein, Asst. City Atty., with whom, on the brief, was John J. McNamara, City Atty., for appellees (defendants).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARMENTANO, Justice.

This appeal questions whether the estate of a fireman may maintain an action against the deceased's fellow employees for wrongful death caused by the negligent operation of a motor vehicle, when both the deceased and the individual defendants were acting within the scope of their employment as firemen for the city of Bridgeport.

For purposes of this appeal, the facts are undisputed. On April 19, 1973, the plaintiff's decedent and the individual defendants were employed as firemen for the defendant city of Bridgeport and were working at the site of a grass fire located in the city. At the command of the defendant Lieutenant William L. Bailey, the defendant Vincent M. Verrillo, a fireman, backed up a fire truck, owned by the city, negligently causing the truck to run over and instantly kill the deceased, William V. Keogh, also a fireman. The plaintiff administratrix brought a wrongful death action against the two employees individually and the city pursuant to General Statutes § 52-555 and an indemnity action pursuant to General Statutes § 7-308 against the city of Bridgeport. 1 The plaintiff has not alleged that the defendants acted wilfully or maliciously.

On July 18, 1980, the trial court granted the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction, holding that the sole remedy against the defendant city is benefits provided by the Workers' Compensation Act; General Statutes §§ 31-275 through 31-355; and that because the deceased had a right to workers' compensation benefits, General Statutes § 7-308 bars his successor's claim against his fellow employees. In her appeal from the dismissal of the complaint, the plaintiff claims alternatively (1) that General Statutes § 7-308 does not apply to an action brought by the estate of a deceased fireman or the statute is unconstitutionally vague; (2) that this court should overrule our analogous holding in Edmundson v. Rivera, 169 Conn. 630, 363 A.2d 1031 (1975), followed in McKinley v. Musshorn, --- Conn. ---, --- - ---, 441 A.2d 600 (43 Conn.L.J., No. 26, pp. 5, 6-7) (1981), by construing the relevant statutes to permit the action; (3) that our construction renders General Statutes § 7-308 in violation of equal protection under the fourteenth amendment to the United States constitution and article first, § 20, of the constitution of Connecticut; 2 or (4) that the city has waived its right to assert defenses.

I

The plaintiff first claims that General Statutes § 7-308 either does not apply to a wrongful death action brought by the administratrix of the estate of a deceased fireman, or that the statute is unconstitutionally vague. General Statutes § 7-308 provides indemnity by municipalities for "all sums which [a] fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the ... injury ... complained of, was performing fire duties and if such ... injury ... was not the result of any wilful or wanton act of such fireman in the discharge of such duties.... Governmental immunity shall not be a defense in any action brought under this section." In the part most pertinent to this appeal the statute states: "This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent has a right to ... [workers' compensation] ... by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to ... [workers' compensation] ... by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious." 3

The plaintiff contends that because wrongful death actions are not brought by the dependents of a deceased, the statutory immunity granted fellow employees from personal liability does not apply. We agree that a wrongful death action survives death and is maintainable by the administratrix or executrix of the deceased's estate, and not by his dependents. See General Statutes §§ 52-555, 4 52-599; 5 Grody v. Tulin, 170 Conn. 443, 447, 365 A.2d 1076 (1976); McCoy v. Raucci, 156 Conn. 115, 118, 239 A.2d 689 (1968); Foran v. Carangelo, 153 Conn. 356, 362, 216 A.2d 638 (1966). An administratrix stands in the shoes of the deceased and can recover for wrongful death only if the deceased could have recovered for his injuries had they not proved fatal. Nolan v. Morelli, 154 Conn. 432, 435, 226 A.2d 383 (1967); Foran v. Carangelo, supra, 153 Conn. 360, 216 A.2d 638; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918 (1957). Any recovery for wrongful death is distributed as part of the personal estate of the deceased. General Statutes § 45-280(b); Floyd v. Fruit Industries, Inc., supra, 670-71, 136 A.2d 918.

This court assumes that the legislature intended to enact a consistent body of law. See, e.g., McKinney v. Coventry, 176 Conn. 613, 621, 410 A.2d 453 (1979). Because a fireman's action for personal injuries survives his death resulting therefrom, the reference in § 7-308 to an action by a fireman includes an action by that fireman's administratrix under General Statutes §§ 52-555 and 52-599. Cf. Stavola v. Palmer, 136 Conn. 670, 676-77, 73 A.2d 831 (1950); Reinhardt v. New Haven, 23 Conn.Sup. 321, 324-25, 182 A.2d 925 (1961). Accordingly, § 7-308 applies to the present case.

The plaintiff contends that the inaccurate reference to the cause of action of the deceased's "dependent" renders the statute vague in violation of the due process clause of the fourteenth amendment 6 to the United States constitution and article first, § 8, of the constitution of Connecticut. The due process provisions of the state and federal constitutions generally have the same meaning and impose similar constitutional limitations. McKinney v. Coventry, supra, 176 Conn. 616, 410 A.2d 453.

Civil statutes must be definite in their meaning and application, but may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes. See, e.g., A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S.Ct. 295, 297, 69 L.Ed. 589 (1925); Seals v. Hickey, 186 Conn. 337, 343, 441 A.2d 604 (1982); State v. Anonymous, 179 Conn. 155, 163, 425 A.2d 939 (1979); McKinney v. Coventry, supra, 176 Conn. 619, 410 A.2d 453. "Due process requires that a statute afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited." Seals v. Hickey, supra, 186 Conn. 343, 441 A.2d 604, quoting McKinney v. Coventry, supra, 176 Conn. 618-19, 410 A.2d 453. An imprecise statute may be sufficiently definite if it provides reasonably distinct boundaries for its fair administration. State v. Anonymous, supra, 179 Conn. 164, 425 A.2d 939.

"It is well settled that parties challenging the constitutionality of a statutory enactment have the burden of showing its invalidity beyond a reasonable doubt." McKinney v. Coventry, supra, 176 Conn. 621, 410 A.2d 453; see United Illuminating Co. v. New Haven, 179 Conn. 627, 641, 427 A.2d 830, appeal dismissed, 449 U.S. 801, 101 S.Ct. 45, 66 L.Ed.2d 5 (1980). A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. McKinney v. Coventry, supra, 176 Conn. 622, 410 A.2d 453; see United Illuminating Co. v. New Haven, supra, 179 Conn. 641-42, 427 A.2d 830. Applying the test for vagueness to the facts at issue in the present case; diLeo v. Greenfield, 541 F.2d 949, 953 (2d Cir. 1976); State v. Smith, --- Conn. ---, 438 A.2d 1165 (42 Conn.L.J., No. 31, p. 13) (1981); State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980); we are not persuaded that the plaintiff has met its burden of proving its unconstitutionality.

The inaccurate reference in § 7-308 to the cause of action in a deceased fireman's "dependent" apparently follows the earlier accurate reference to the right of a dependent to workers' compensation benefits or compensation. See General Statutes § 31-306. Although this court is loath to consider any statutory language as surplus, with respect to a wrongful death action, which a "dependent" does not bring under present law, the inaccurate language has no effect. According to our construction of the statutes, however, the cause of action in the deceased fireman survives his death in an action by the administratrix or executrix of his estate. See General Statutes §§ 52-555 and 52-599. Because the statute is capable of a reasonable interpretation, it is not vague, despite its imprecision.

II

The plaintiff next claims that when injuries are caused by the negligent operation of a motor vehicle, General Statutes § 31-293a supersedes the immunity of a fellow employee provided by General Statutes § 7-308. "An employee who has a right to benefits under the Workers' Compensation Act, is barred from pursuing an action against his employer for damages for personal injuries. Whether the right to workers' compensation also bars an action...

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