Rowe v. Godou

• Decision Date: 06 December 1988
• Docket Number: No. 13318,13318
• Parties: Clinton ROWE v. Raymond GODOU et al.
• Court: Connecticut Supreme Court

Page 1073

550 A.2d 1073

209 Conn. 273

Clinton ROWE v. Raymond GODOU et al.

No. 13318.

Supreme Court of Connecticut.

Argued Oct. 14, 1988.

Decided Dec. 6, 1988.

Robert C. Pinciaro, with whom were Bruce L. Levin and, on the brief, Serge G. Mihaly, for appellant (plaintiff).

David Noel Feliu, Asst. City Atty., for appellees (defendants).

Before HEALEY, SHEA, CALLAHAN, HULL and SANTANIELLO, JJ. CALLAHAN, Associate Justice.

This case is in this court by virtue of our certification from the Appellate Court. Rowe v. Godou, 12 Conn.App. 538, 532 A.2d 978 (1987), cert. granted, 206 Conn. 802, 535 A.2d 1316 (1988). As set forth in the Appellate Court opinion, the plaintiff, Clinton Rowe, commenced an action in a single count against the defendants, Raymond Godou and the city of Bridgeport, seeking compensation for property damage to his motor vehicle allegedly caused by Godou's negligent operation of a fire truck owned by the city. Id., 12 Conn.App. at 539, 532 A.2d 978. The defendants moved to strike the plaintiff's entire complaint on the ground that his action was "barred by statute." Id. The defendants' motion was accompanied by a memorandum of law that specified General Statutes § 7-308 as the statute that "barred" the plaintiff's action. The trial court granted the defendants' motion to strike and, upon the failure of the plaintiff to plead over, rendered judgment for the defendants. Id., 539-40; see Practice Book § 157. ¹

The plaintiff appealed to the Appellate Court from the judgment rendered on the defendants' motion to strike. In his appeal, the plaintiff first claimed that the defendants' motion to strike was itself fatally defective because it failed to comply with Practice Book §§ 154 ² and 109A. ³ The Appellate Court held that the motion as supplemented by the memorandum of law was adequate to submit to the court the material issue concerning the alleged flaw in the plaintiff's complaint and was, therefore, sufficiently specific to comply with Practice Book § 154. The Appellate Court also concluded that Practice Book § 109A was directory, rather than mandatory, and although the defendants' motion to strike failed to identify precisely the statute that it claimed "barred" the plaintiff's cause of action, that failure did not invalidate the defendants' motion. Rowe v. Godou, supra, at 541-44, 532 A.2d 978. We agree with the reasoning of, and the result reached by, the Appellate Court in deciding the plaintiff's claims relative to the defendants' alleged failure to comply with Practice Book §§ 154 and 109A.

The plaintiff next maintains that the Appellate Court erred by "divining" facts not alleged in his complaint and by finding, without foundation, that his action was brought pursuant to General Statutes § 7-308. ⁴ He claims, consequently, that the Appellate Court erred when it upheld the striking of his complaint for failure to comply with the notice requirements of that statute. We agree.

Section 7-308 is an indemnification statute that, generally, requires a municipality to pay on behalf of any "paid or volunteer fireman" all sums that the fireman becomes obligated to pay as damages by reason of liability incurred while performing "fire duties." Haehl v. Port Chester, 463 F.Sup. 845, 847-48 (S.D.N.Y.1978); Reinhardt v. New Haven, 23 Conn.Sup. 321, 323-24, 182 A.2d 925 (1961). It has application only to a "paid or volunteer fireman" engaged in "fire duties" at the time that the liability was incurred. Shaw v. Industrial Safety Supply Co., 23 Conn.Sup. 149, 151-52, 178 A.2d 284 (1962). The plaintiff's complaint does allege that, at the time of the accident which damaged his motor vehicle, the defendant Godou was operating a fire truck owned by the city of Bridgeport as "agent, servant and/or under a general authority to drive." Nowhere in his complaint, however, is it alleged that at that time Godou was a "paid or volunteer fireman" or that he was performing "fire duties." Further, there is nothing in the plaintiff's complaint to indicate that he was proceeding under § 7-308, nor are there allegations of compliance or attempted compliance with its provisions. The Appellate Court determined, however, that the conclusion was "inescapable" that the language of the complaint implicated Godou in his capacity as a "paid or volunteer fireman" who was performing "fire duties." Rowe v. Godou, supra, 12 Conn.App. at 545, 532 A.2d 978. It concluded, therefore, that the plaintiff sought recovery for his damages pursuant to § 7-308 and that his "complaint was deficient due to its failure to allege compliance with the notice provision as required by the statute." Id.

Without reciting a litany of other possibilities, we disagree with the Appellate Court that the conclusion was "inescapable" that, at the time of the accident, Godou was a "paid or volunteer fireman" engaged in the performance of "fire duties." Suffice it to say, the plaintiff's complaint did not so allege. In order, to arrive at its conclusion, therefore, the Appellate Court had either to speculate or to resort to information outside the complaint. In ruling on the motion to strike, however, the Appellate Court was limited to the facts alleged in the plaintiff's complaint. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988); King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982).

Further, in ruling on a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Gordon v. Bridgeport Housing Authority, supra; Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980). So construed, the facts alleged in his complaint can be viewed as an effort by the plaintiff to seek compensation for his damages in a common law negligence action against the individual defendant. "We have previously held that an injured party may maintain a common-law action against a municipal employee covered by the statute [§ 7-465], ⁵ thereby avoiding those requirements which are unique to recovery under the indemnification statute." Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977); Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833 (1964); see also Norwich v. Silverberg, 200 Conn. 367, 372, 511 A.2d 336 (1986); Bowrys v. Santanella, 39 Conn.Sup. 102, 106, 470 A.2d 1245 (1983). "A plaintiff's failure to sustain his complaint against the municipality is no reason for turning the plaintiff out of court if he can sustain his complaint against the employee." Fraser v. Henninger, supra, 173 Conn. at 57, 376 A.2d 406.

It is true that the plaintiff's complaint is confusing because it combines, in a single count, separate causes of action against the individual defendant and the municipality. ⁶ Since there was nothing to prevent those two possible causes of action from being joined in the same complaint, ⁷ however, the proper way to cure any confusion in that regard is to file a motion to revise, not a motion to strike the entire complaint. Practice Book § 147(3). ⁸ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites. ⁹ Practice Book § 152(1); ¹⁰ see Moore v. State, 15 Conn.Sup. 251, 252 (1947).

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand to the trial court with direction to deny the defendants' motion to strike.

In this opinion the other Justices concurred.

1 "[Practice Book] Sec. 157.--SUBSTITUTE PLEADING; JUDGMENT

"Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint."

2 "[Practice Book] Sec. 154.--REASONS

"Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."

3 "[Practice Book] Sec. 109A.--ALLEGATIONS BASED ON STATUTORY GROUNDS

"When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979."

4 "[General Statutes] Sec. 7-308. ASSUMPTION OF LIABILITY FOR DAMAGES CAUSED BY FIREMEN. The word 'municipality,' as used in this section, shall have the meaning ascribed to it by section 7-314 and the words 'fire duties' mean those duties the performance of which is defined in said section. Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman of such municipality all sums which such 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 occurrence, accident, injury or damages...