Parente v. State, No. CV 03 0475740 S (Conn. Super. 3/18/2004)

• Decision Date: 18 March 2004
• Docket Number: No. CV 03 0475740 S,CV 03 0475740 S
• Parties: Joseph Parente v. State of Connecticut et al.
• Court: Connecticut Superior Court

Page 1

Unpublished Opinion

Joseph Parente v. State of Connecticut et al.

No. CV 03 0475740 S

Superior Court of Connecticut

Judicial District of New Haven at New Haven

March 18, 2004

MEMORANDUM OF DECISION MOTION TO DISMISS #114

ARNOLD, JUDGE.

The defendant State of Connecticut has filed a motion to dismiss the action pursuant to Practice Book §10-31(a)(1) on the grounds that the action is barred by the doctrine of sovereign immunity, and thus, the court lacks subject matter jurisdiction.

The plaintiff by way of a complaint dated March 7, 2002, instituted this action against Cynthia Troxler and the State of Connecticut alleging that on August 9, 2001, Troxler was operating a motor vehicle owned by the State of Connecticut while in the course of her employment when she negligently caused an accident with the plaintiff's vehicle causing the injuries the plaintiff complains of.

On December 1, 2003, this court granted the defendant Troxler's motion to dismiss the complaint based on the grounds of sovereign immunity. The court relied upon General Statutes §4-165, which states in pertinent part:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.

The defendant State of Connecticut now seeks to dismiss the action as it pertains to the state claiming that the complaint does not plead that the state vehicle was "insured by the state against personal injuries or property damages," or that the action is brought pursuant to General Statutes §52-556.¹ The state also argues that the action does not plead that the plaintiff was granted permission from the claims commissioner to bring this action, pursuant to General Statutes §4-160(c).²

The plaintiff in opposing the motion to dismiss, argues that sovereign immunity is no defense to claims asserted under General Statutes §52-556; that the claim was properly asserted under §52-556; and that the defendant State of Connecticut by way of its responses to the plaintiff's requests for interrogatories, which were filed prior to the motion to dismiss, has admitted to maintaining umbrella coverage insurance covering the subject motor vehicle.

The court takes judicial notice that the presence of umbrella insurance coverage occurs only when there is underlying coverage, even if the vehicle was self-insured. See Parsons v. United Technologies Corp., 243 Conn. 66, 85, 700 A.2d 655, 665 (1997) (a court may take judicial notice of things that are within the knowledge of people generally or are generally accepted as true and are capable of ready and unquestionable demonstration).

The standards to be applied to a review of a motion to dismiss are well-established. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; and (3) improper venue. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298, 45 Conn. L. Rptr. 336 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).

It is well established principle that "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994); Lussier v. Department of Transportation, 228 Conn. 343, 349 (1992); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185-86 (1991).

The general rule is that "state cannot be sued without its consent." Horton v. Meskill, 172 Conn. 615, 623 (1977). The state, however, may waive sovereign immunity by statute if it so chooses. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195, 1199 (1990). "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity." Miller v. Egan, 265 Conn. 301, 313-14, 828 A.2d 549 (2003); See also, Martinez v. Dept. of Public Safety, 263 Conn. 74, 85-86 (2003). General Statutes §52-556 by its plain language does waive the state's sovereign immunity.

The defendant state's motion to dismiss rests on the assertion that the plaintiff's complaint fails to properly invoke §52-556 since the complaint does not specifically allege that the State of Connecticut insured the vehicle in question. The defendant state argues that an essential element in an action against the state under §52-556 is that the state-owned vehicle must "be insured by the state against personal injuries or property damage," and therefore, the absence of such allegation in the plaintiff's complaint is fatal.

General Statute §52-566 provides a limited waiver of sovereign immunity and, as a break from common law, it is to be strictly construed. Filippi v. Sullivan, 78 Conn.App. 796, 800, 828 A.2d 620 (2003); Lussier v. Dept Of Transportation, supra, 228 Conn. 343. It is well established that "statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Citations omitted.) Miller v. Egan, supra, 265 Conn. 329; White v. Burns, supra, 213 Conn. 312. "[T]he state is not to be sued without its consent. Its rights are not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication." (Emphasis added.) (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 301, (Zarella, J., with whom Sullivan, C.J., joins, concurring); State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 (1908); Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990); Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633 (1974); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972); Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963).

"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). Pleadings are to be read "broadly and realistically rather than narrowly and technically." (Internal quotation marks omitted.) Flanagan v. Blumenthal, 265 Conn. 350, 365-66, 828 A.2d 572 (2003); Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002). Statutes in derogation of sovereign immunity, however, are to be construed narrowly. Hunte v. Blumenthal, 238 Conn. 146, 152, 680 A.2d 1231 (1996); Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975).

Whether the plaintiff's complaint sufficiently alleges facts that, construed in the light most favorable to him, demonstrate that he is entitled to proceed under the waiver of sovereign immunity contained in §52-566 is a question of statutory interpretation. "Statutory construction . . . presents a question of law . . . [Therefore, in accordance with] our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature . . . In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Vickers, 260 Conn. 219, 223-24, 796 A.2d 502 (2002); See also, Public Act 03-154.³

When the court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. Because this case comes to the court on a statutory immunity issue, pursuant to a motion to dismiss, the court does not pass on whether the complaint was legally sufficient to state a cause of action. In the posture of this case, we examine the pleadings to decide if the plaintiff has alleged sufficient facts with respect to §52-566, to support a conclusion that legislative intent of §52-566 was satisfied. See Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002). The question before the court, therefore, is whether the facts as alleged in the plaintiff's pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive a motion to dismiss on the ground of statutory immunity. Id. at 376.

"[T]he interpretation of pleadings is always a question [of law] for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly...