Lussier v. Department of Transp.

• Citation: 228 Conn. 343,636 A.2d 808
• Decision Date: 25 January 1994
• Docket Number: No. 14698,14698
• Parties: Paul B. LUSSIER, Jr., Administrator (ESTATE of Gaye D. LUSSIER) v. DEPARTMENT OF TRANSPORTATION.
• Court: Supreme Court of Connecticut

Page 808

636 A.2d 808

228 Conn. 343

Paul B. LUSSIER, Jr., Administrator (ESTATE of Gaye D. LUSSIER) v. DEPARTMENT OF TRANSPORTATION.

No. 14698.

Supreme Court of Connecticut.

Argued Oct. 28, 1993.

Decided Jan. 25, 1994.

Robert B. Keville, with whom were Thomas B. Wilson and, on the brief, Eugene K. Swain, for appellant-appellee (plaintiff).

Michael P. Carey, with whom, on the brief, was Michael E. Driscoll, for appellee-appellant (defendant).

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

KATZ, Associate Justice.

This defective highway action poses two questions for the court: (1) whether a defect in the civil summons form listing the defendant as the state of Connecticut, department of transportation, deprives the court of subject matter jurisdiction when (a) the complaint caption identifies the defendant as the commissioner of transportation, (b) the commissioner of transportation is named as the party responsible for highway maintenance, (c) his office accepts service of process, and (d) the statutory notice is sent to the commissioner of transportation; and (2) whether the statutory notice, which itself did not give the exact location of the patch of ice on which the decedent lost control of her vehicle, but which was supplemented by more precise information contained within an affidavit submitted by the plaintiff, can survive a motion to dismiss?

The following allegations are undisputed for the purposes of this appeal. The plaintiff Paul B. Lussier, Jr., administrator of the estate of Gaye D. Lussier, by complaint dated December 31, 1991, alleged that on January 11, 1990, at approximately 7:35 a.m., the plaintiff's decedent, Gaye D. Lussier, had been driving her 1989 Toyota in a southerly direction on route 617 in North Stonington when her vehicle, at a point on route 617 where the highway crosses the Shunock River, left the travel lane and, due to icy conditions, struck guardrails on the northbound side of the highway. The complaint further alleged that the vehicle proceeded to slide down an embankment on the east side of route 617 and flipped over, finally coming to rest on its roof in the river below. The force of the collision resulted in injuries that made it impossible for the decedent to escape from her disabled vehicle, thereby causing her to drown in approximately one and one-half feet of water. The plaintiff alleged that the defendant, Emil H. Frankel, or a predecessor, was the commissioner of transportation of the state of Connecticut (commissioner) at the time of the accident and that it is the commissioner's duty pursuant to General Statutes § 13a-144 ¹ to keep and maintain in a reasonably safe condition all highway bridges and sidewalks in the state highway system. The plaintiff alleged that the decedent's injuries and resulting death had been proximately caused by the negligence and carelessness of the commissioner in that he had breached this statutory duty in one or more ways. ²

Although the caption of the complaint read: "Paul B. Lussier, Jr., Administrator of the Estate of Gaye D. Lussier vs. Emil H. Frankel, Commissioner of Transportation of the State of Connecticut," the writ of summons listed the named defendant as the "State of Connecticut, Department of Transportation, by serving the Commissioner of the Department of Transportation, Emil H. Frankel, 24 Wolcott Hill Road, Wethersfield, CT 06109." Service of the complaint was made on Jane S. Scholl, associate attorney general, and Linda Laporte, senior clerk at the office of the commissioner, department of transportation, state of Connecticut.

On February 6, 1992, counsel for the state of Connecticut, department of transportation (department), entered a general appearance. On May 14, 1992, the department moved to dismiss the complaint on the grounds that the action was barred both under the doctrine of sovereign immunity and because of defects in the required statutory notice. The trial court rejected the department's claim that the statutory notice lacked sufficient specificity, but agreed that by failing to name the commissioner of transportation as the defendant in the summons, the plaintiff had failed to sue the appropriate party pursuant to § 13a-144. The trial court, therefore, dismissed the complaint. ³ It is from this judgment that the plaintiff appealed.

On appeal, the plaintiff claims that in a civil action seeking damages for the wrongful death of the plaintiff's decedent, brought under the defective highway statute, where the complaint named the defendant as Emil H. Frankel, commissioner of transportation of the state of Connecticut, but the summons listed the "defendant" as "State of Connecticut, Department of Transportation, by serving the Commissioner of the Department of Transportation, Emil H. Frankel, 24 Wolcott Hill Road, Wethersfield, CT 06109," the trial court should not have dismissed the complaint for lack of subject matter jurisdiction on the ground of sovereign immunity. The department filed a cross appeal and claimed that the trial court had improperly concluded that the notice was not patently defective. ⁴ We agree with the plaintiff on his claim and reject the department's alternate ground for affirmance.

I

The department claimed that because the civil summons form listed the defendant as the "State of Connecticut, Department of Transportation," this was a defect that stripped the court of subject matter jurisdiction. Specifically, the department maintained that § 13a-144 requires that claims arising from accidents on public roads be brought against the commissioner. Because the commissioner had not been named as the defendant in the summons, the department argued that the trial court was without subject matter jurisdiction. The plaintiff, on the other hand, argued that the failure to name the commissioner as the defendant in the summons was a mere circumstantial defect that did not affect the court's jurisdiction over the claim, and, therefore, that the caption of the complaint and the allegations contained therein were sufficient to bring the case within the strictures of § 13a-144.

It is undisputed that the commissioner was properly named in the complaint, that the department was served, and that statutory notice had been provided to then commissioner of transportation, J. William Burns. ⁵ The department argues, nevertheless, that the defect in the civil summons form that identified the commissioner of the department "as an agent for service" served to strip the trial court of subject matter jurisdiction. We disagree.

Section 13a-144 constitutes only a limited waiver of the state's sovereign immunity in cases involving alleged highway defects. Lacasse v. Burns, 214 Conn. 464, 468-70, 572 A.2d 357 (1990). Furthermore, because the statute constitutes a break with common law, it must be strictly construed. DeFonce Construction Corp. v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985), superseded by statute as stated in Ducci Electrical Contractors, Inc. v. Department of Transportation, 28 Conn.App. 175, 611 A.2d 891 (1992). Once its immunity has been waived, however, the state will be treated "in a manner identical to any other litigant, except for the taxation of costs ... or the award of prejudgment interest when a defendant has failed to accept an offer of judgment equal to or less than the amount recovered." (Citations omitted.) Lacasse v. Burns, supra, 214 Conn. at 469, 572 A.2d 357.

This case presents a classic example of a common defect in process involving the designation of the defendant. The plaintiff argues that the name of the defendant was merely stated incorrectly while the department maintains that the plaintiff correctly stated the name of the wrong person or entity as the defendant. These two different categories of defects, though easily confused, are readily distinguished. The first, involving a defendant designated by an incorrect name, is referred to as a "misnomer." It is a circumstantial defect anticipated by General Statutes § 52-123 ⁶ that can be cured by amendment. A misnomer must be distinguished from a case in which the plaintiff has misconstrued the identity of the defendant, rather than the legal nature of his existence.

When the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party. The issue, then, is "whether a misnomer is a designation of the right party in a way which may be inaccurate but which is still sufficient for identification purposes or whether the wrong person has been designated as a party." 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 105e, p. 433. Whether the plaintiff has misconstrued the identity of his or her intended defendant or merely the intended defendant's legal name or nature is a question that may be answered only after all the circumstances have been examined. See World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643, 136 A. 681 (1927).

It is undisputed that the state can act only through its officers or agents; Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); and that the highway commissioner, as a representative of the state, is the party upon whom the legislature intended to impose legal responsibility under § 13a-144. White v. Burns, 213 Conn. 307, 326, 567 A.2d 1195 (1990) ("[t]he commissioner ... is the only one upon whom is imposed the duty to repair under § 13a-144") (emphasis in original); Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 (1920). The plaintiff acknowledges the commissioner's responsibility and argues that the...