Sullivan v. State

• Decision Date: 22 March 1983
• Citation: 189 Conn. 550,457 A.2d 304
• Court: Connecticut Supreme Court
• Parties: Sharon E. SULLIVAN, Administratrix (ESTATE OF Eugene R. SULLIVAN, Jr.) v. STATE of Connecticut et al.

Page 304

457 A.2d 304

189 Conn. 550

Sharon E. SULLIVAN, Administratrix (ESTATE OF Eugene R. SULLIVAN, Jr.) v. STATE of Connecticut et al.

Supreme Court of Connecticut.

Argued Dec. 1, 1982.

Decided March 22, 1983.

Thomas B. Wilson, Groton, for appellant (plaintiff).

Andrew J. O'Keefe, West Hartford, with whom were Denise M. Phelan, Hartford, and Matthew J. O'Keefe, Bethlehem, for appellees (defendants).

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

SHEA, Associate Justice.

This appeal raises the issue of whether a wrongful death action charging negligent operation of a motor vehicle, in which both the plaintiff's decedent and the defendant ¹ were state employees, was properly dismissed by the trial court on the ground that it was barred by the immunity granted state employees under General Statutes § 4-165. ²

The facts are undisputed. The plaintiff's decedent and the defendant were co-workers at the state department of transportation. During the course of employment the defendant backed a state owned vehicle into the decedent thereby causing fatal injuries. Liability insurance was carried on the vehicle. Both parties concede that, as the widow of the decedent, the plaintiff is entitled to benefits under the Workers' Compensation Act.

In her capacity as administratrix, the plaintiff has brought this action against the defendant under the motor vehicle exception of the Workers' Compensation Act; General Statutes § 31-293a; ³ which provides that "no action may be brought against such fellow employee except for negligence in the operation of a motor vehicle as defined in section 14-1 ...." By way of special defense, the defendant has claimed immunity from liability to the plaintiff pursuant to General Statutes § 4-165, which provides that no state employee shall be personally liable for injuries not wantonly or wilfully caused in the course of employment. The plaintiff has not alleged that the defendant's acts were wanton or wilful. The defendant moved to dismiss ⁴ the complaint on the ground that the action was barred by § 4-165. The trial court granted the motion and the plaintiff has appealed from that judgment.

The plaintiff alleges three grounds for finding the trial court erred in concluding her action was barred: (1) that the immunity granted state employees by § 4-165 is inapplicable to claims arising under the motor vehicle exception of § 31-293a; (2) that, should § 4-165 be applicable, the § 31-293a right of action is properly construed as superseding § 4-165 immunity; and (3) that by depriving the plaintiff of a legal cause of action to redress her injuries, § 4-165 violates the state constitution. ⁵ We find no error.

Since the filing of this appeal this court has had the opportunity to resolve the issue of whether the private right of action against a fellow employee for negligent operation of a motor vehicle permitted by § 31-293a is unavailable to state employees because of the immunity granted by § 4-165. In McKinley v. Musshorn, 185 Conn. --- (43 CLJ 26, p. 5), 441 A.2d 600 (1981) we held that the subsequent enactment of § 31-293a did not modify the general immunity granted state employees by § 4-165 for acts which are not wantonly or wilfully committed. At oral argument, the plaintiff conceded that McKinley disposed of her first two claims of error and has abandoned those claims.

The only issue remaining before this court, therefore, is whether § 4-165, by depriving the plaintiff of the opportunity to bring an action to recover damages for injuries sustained by her decedent at the hands of his co-worker, abrogates her rights as guaranteed by the state constitution. This issue has not been previously addressed by this court. We decline, however, to resolve the question at this time because it is not properly before this court.

It is a cardinal principle of judicial review "that when an adequate administrative remedy is provided by law, it should be exhausted." Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); see Connecticut Mobile Home Assn., Inc. v. Jensen's, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979); Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 467, 378 A.2d 547 (1977); Wagner v. Connecticut Personnel Appeal Board, 170 Conn. 668, 671, 368 A.2d 20 (1976); 3 Davis, Administrative Law § 20.01; General Statutes § 4-183(a); ⁶ 2 Am.Jur.2d, Administrative Law § 595. Claims of constitutional violations are no exception to this general rule. See Florentine v. Darien, 142 Conn. 415, 426-27, 115 A.2d 328 (1955). Application of this principle, however, is limited to those situations where the pursuit of administrative remedies is not necessarily futile. See Connecticut Mobile Home Assn., Inc. v. Jensen's, Inc., supra, 178 Conn. at 588, 424 A.2d 285; Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969); 2 Am.Jur.2d, Administrative Law § 603.

As previously noted the plaintiff's action against the defendant is barred by § 4-165, which provides immunity to state employees from personal liability for injury not wantonly or wilfully caused in the performance of their duties and within the scope of their employment. Section 4-165 continues, however, "[a]ny person having a complaint for such ... injury shall present it as a claim against the state under the provisions of this chapter." (Emphasis added.) In McKinley we indicated the availability of this administrative remedy when we stated: "An individual having a liability claim for which a state employee is immune pursuant to General Statutes § 4-165 may present it as a claim against the state to the claims commissioner." Id., 6.

The state claims commissioner is charged with the duty to hear and determine all petitions for the payment or refund of money from the state or for permission to sue the state. See General Statutes §§ 4-141, 4-142. ⁷ After a hearing, the commissioner may approve immediately any claim not exceeding $5000 which he determines is a "just claim"; General Statutes § 4-158; one "which in equity and justice the state should pay, provided the state has caused damage or injury or has received a benefit ...." General Statutes § 4-141. For claims exceeding $5000, the commissioner submits a recommendation for rejection or payment to the general assembly, which in turn may accept, alter or reject the recommendation. General Statutes § 4-159. In addition, when the commissioner "deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable." General Statutes § 4-160(a). ⁸ In such authorized actions the rights and liability of the state are coextensive with and equal to those of a private person in like circumstances. Id.

The plaintiff admits that she has never filed a petition with the state claims commissioner. In oral argument, the plaintiff contended that recourse to that administrative agency would have been futile since the commission would have been statutorily barred from granting adequate relief. The Workers' Compensation Act grants to employers immunity from liability for personal injuries sustained by employees in the course of employment. See General Statutes § 31-284(a). According to the plaintiff, it would be futile for the commissioner to authorize the plaintiff's suit under § 4-160(a) because the decedent was covered by the Workers' Compensation Act and, therefore, the state, in the capacity of a private employer, would be immune from liability under § 31-284(a). Furthermore, the commissioner, under § 4-160(a), may only authorize suits against the state on a "claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable."

The plaintiff is correct in her analysis of the ultimate outcome of an application for permission to sue the state under § 4-160(a). It is well established that when an employee's injury is covered by the Workers' Compensation Act, statutory compensation is the sole remedy and that recovery in common-law tort against the employer is prohibited. Morin v. Lemieux, 179 Conn. 501, 503, 427 A.2d 397 (1980); Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); see Horney v. Johnson, 167 Conn. 621, 622-23, 356 A.2d 879 (1975); Mase v. Meriden, 164 Conn. 65, 67, 316 A.2d 754 (1972). We cannot conclude, however, that recourse to the commissioner under other provisions of the claims act would have resulted in an inadequate remedy. If timely filed, ⁹ the commissioner would have been empowered to consider the plaintiff's claim that, in addition to workers' compensation benefits, she was entitled to compensation by the state on the ground that the immunity granted state employees under § 4-165 deprived her of damages which otherwise might have been recoverable through a negligence action under the motor vehicle exception of § 31-293a. If the commissioner had determined that such a claim was one which "in equity and justice the state should pay," he could have either granted an award not exceeding $5000 or recommended approval of a greater amount to the general assembly. General Statutes §§ 4-158, 4-159. If her claim had been rejected by the commissioner or the general assembly, the plaintiff would then have been free to bring her constitutional claim to the Superior Court. See Hirschfeld v. Commission on Claims, 172 Conn. 603, 607-608, 376 A.2d 71 (1977).

Since we are not aware of any legal barrier to the presentation of the plaintiff's claim to the commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate. We conclude that the plaintiff has failed to exhaust an available administrative remedy which might well have provided the relief sought and to which § 4-165 expressly directs recourse. This failure...