Zahrijczuk v. Water Pollution Control Auth. of Branford

• Decision Date: 10 April 2012
• Docket Number: No. CV–11–6024727.,CV–11–6024727.
• Citation: 52 Conn.Supp. 422,50 A.3d 421
• Court: Connecticut Superior Court
• Parties: Anna ZAHRIJCZUK v. WATER POLLUTION CONTROL AUTHORITY OF THE TOWN OF BRANFORD.

52 Conn.Supp. 422

50 A.3d 421

Anna ZAHRIJCZUK

v.WATER POLLUTION CONTROL AUTHORITY OF THE TOWN OF BRANFORD.

No. CV–11–6024727.

Superior Court of Connecticut,

Judicial District of New Haven.

April 10, 2012.

Robert C. Ruggiero, Jr., New Haven, for the plaintiff.

Kevin M. Tighe, Lynn McCormick and Thomas R. Gerarde, Hartford, for the defendant.

BLUE, J.

IINTRODUCTION

“[W]ater pollution control authorities are quasi-municipal corporations created pursuant to statute....” Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 281, 968 A.2d 345 (2009). The principal question presented by the Motion To Dismiss now before the court is whether a water pollution control authority has the legal capacity to be sued. For the reasons stated below, the answer to this question is Yes.

For purposes of this motion, the factual assertions set forth in the Complaint are not contested. The plaintiff, Anna Zahrijczuk, owns a house in Branford. Her sewerage system is operated by the defendant, Branford Water Pollution Control Authority (“Authority”). On October 10, 2009, the Authority's sewerage system over-flowed and damaged Zahrijczuk's property.

On October 8, 2011, Zahrijczuk commenced this action against the Authority by service of process. She is the sole plaintiff, and the Authority is the sole defendant. Her Complaint consists of four counts, alleging various forms of negligence and nuisance.

On December 15, 2011, the Authority filed the Motion To Dismiss now before the court. The Motion contends that, “This Court lacks jurisdiction because (1) the Branford Water Pollution Control Authority is not an independent legal entity which can be sued; and (2) the writ/summons lacks a proper recognizance.” The Motion was argued on April 2, 2012. Supplemental briefs were filed on April 9, 2012.

IITHE AUTHORITY'S CAPACITY TO BE SUED

The Authority's principal contention is that it lacks the legal capacity to be sued. This claim requires a careful review of the complex statutory scheme governing water pollution control authorities.

Our Supreme Court's description of water pollution control authorities as “quasi-municipal corporations”; Forest Walk, LLC v. Water Pollution Control Authority, supra, 291 Conn. at 281, 968 A.2d 345; while plainly establishing that such authorities have a legal status of some sort, does not clarify exactly what that status is. It would be better, as McQuillin explains, “to confine the term ‘quasi-corporation’ to organizations not strictly corporations at all, and to designate as ‘quasi-municipal’ those organizations that are deemed corporations but which are held not municipal corporations....” 1 E. McQuillin, The Law of Municipal Corporations (3d Ed. Rev.2010) § 2:17, pp. 202203. “What is meant by the words ‘ quasi corporation,’ as used in the authorities, is not always very clear. It is a phrase generally applied to a body which exercises certain functions of a corporate character, but which has not been created a corporation by any statute, general or special.” (Emphasis in original.) School District v. Ins. Co., 103 U.S. 707, 708, 26 L.Ed. 601 (1881).¹

The concept of legal capacity to sue or be sued is also the subject of confusion in the law. There is surprisingly little Connecticut jurisprudence on the subject at the appellate level. Superior Court decisionshave largely considered two factors: (1) whether the entity in question is a distinct “body politic” under state law, and (2) whether a specific statute enables the entity to sue and be sued. Luysterborghs v. Pension & Retirement Board, 50 Conn.Supp. 351, 355, 927 A.2d 385 (2007) (citing Superior Court authorities).

Although the Superior Court authorities just cited are entitled to respect, their approach, thus summarized, raises three distinct problems. First, the cited factors will not necessarily point in the same direction in a given case. An entity could be a “body politic” and yet not the subject of a “specific statute” enabling it to sue and be sued. (As discussed below, this is arguably the case here.) Conversely, the legislature could, at least hypothetically, pass a statute specifically allowing an entity other than a “body politic” to sue and be sued. Second, the existing approach is in tension with serious issues of public policy long articulated in the jurisprudence of the United States Supreme Court and the reviewing courts of sister states. Third, the cited approach overlooks General Statutes § 52–73 and the centuries of Connecticut jurisprudence construing that ancient statute. For these reasons, the legal issue of the capacity to sue and be sued must be examined more deeply.

The New York Court of Appeals has helpfully divided this concept into three separate analytical categories:

“Capacity, or the lack thereof, sometimes depends purely upon a litigant's status. A natural person's status as an infant, an adjudicated incompetent or, formerly, a felony prisoner, for example, could disqualify that individual from seeking relief in court....

“Another category of capacity problems ... arises in the context of suits brought by artificial entities. Business corporations, for example, are creatures of statute and, as such, require statutory authority to sue and be sued....

“Governmental entities created by legislative enactment present similar capacity problems. Being artificial creatures of statute, such entities have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate.... The principle is a well-known one, originating in the more general canon that ‘a creature of the State ... has no power other than that given it by the Legislature, either explicitly or by necessary implication’....” (Citations omitted.) Community Board 7 v. Schaffer, 84 N.Y.2d 148, 155–56, 639 N.E.2d 1, 615 N.Y.S.2d 644 (1994).

Water pollution control authorities in Connecticut fall within the third Community Board 7 category. Although they are “quasi-municipal corporations,” and, as such, bodies politic within the confines of larger municipal corporations; Larkin v. Bontatibus, 145 Conn. 570, 576, 145 A.2d 133 (1958); they remain artificial creatures of statute. As such, their capacity to sue or be sued, if it exists at all, “must be derived from the relevant enabling legislation....” (Citations omitted.) Community Board 7 v. Schaffer, supra, 84 N.Y.2d at 156, 615 N.Y.S.2d 644, 639 N.E.2d 1.

This capacity “does not require that in every instance there be express legislative authority.... Rather, the capacity to sue [and be sued] may also be inferred as a necessary implication from [the entity's] power[s] and responsibilit[ies], provided, of course, that there is no clear legislative intent negating review....” (Citations omitted; internal quotation marks omitted.) Id.

The court must consequently conduct a careful review of the relevant legislation governing the Authority in the present case. The Authority is established by Branford Code § 106–1, which gives it all of the powers set forth in General Statutes § 7–246 et seq. It is common ground that neither the Branford Code nor the Connecticut General Statutes explicitly grant the Authority the legal capacity to sue or be sued. The question is whether such capacity can fairly be implied from the relevant legislation.

Section 7–246(a) provides that any municipality may “create a new board or commission to be designated, as the water pollution control authority for such municipality....” As mentioned, the Town of Branford has chosen to create the Authority pursuant to this provision. Branford Code § 106–1.

The only explicit statutory provision addressing the capacity to sue or be sued grants the capacity to sue to the municipality rather than to the water pollution control authority. General Statutes § 7–258(a) provides that, in the event of a delinquent charge for connection with or the use of a sewerage system, “The municipality may recover any such charges in a civil action against any person liable therefor....” Section 7–258(a) does not purport to address the question of capacity to sue or be sued in other contexts.

General Statutes § 7–250 grants water pollution control authorities the capacity to be parties in legal actions in the narrow context of administrative appeals of assessments. A successful administrative appeal does not render the defendant authority liable for monetary damages, and it is difficult to generalize from this provision that the legislature has conferred on the authority the capacity to be sued in other contexts.

The enabling legislation is silent on the capacity of water pollution control authorities to sue or be sued in tort actions. The tort action in the present case, however, plainly arises out of the operation of a sewerage system. The legislature has addressed this aspect of the function of water pollution control authorities in General Statutes § 7–247(a). That statute provides in relevant part that, “Any municipality by its water pollution control authority may acquire, construct and operate a sewerage system or systems....” The term “operate a sewerage system” is a term of art, statutorily defined as meaning “own, use, equip, reequip, repair, maintain, supervise, manage, operate and perform any act pertinent to the collection, transportation and disposal of sewage....” General Statutes § 7–245(8).

Section 7–247(a) thus provides that the entity responsible for the operation of a sewerage system is “[a]ny municipality by its water pollution control authority....” What exactly this Delphic phrase means must now be addressed.

The phrase “[a]ny municipality by its water pollution control authority” clearly means that the “municipality” may be viewed as the operator. Whatever a municipality's status may be with respect to questions of immunity, there is no doubt that it is an entity with the legal capacity to be...