Opinion
No. HHB CV 06 5002667 S
November 5, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#103)
The parties presented oral arguments to the court at the short calendar on October 15, 2007, concerning the defendant Melissa J. Slocumb's motion to dismiss on the ground of lack of subject matter jurisdiction. The defendant contends that the plaintiff's claims in this action are barred by General Statutes § 4-165 and the common-law doctrine of sovereign immunity. The defendant presented two affidavits and memoranda in support of the motion. The plaintiff, Randy Chase, submitted a memorandum of law in opposition to the motion, in response to which the defendant filed a reply.
Section 4-165 provides, in relevant part,: "(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her 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."
Since, as to the motion to dismiss, there are no disputed issues of fact, an evidentiary hearing was not requested. At oral argument, the parties agreed that such a hearing was not required. After consideration of the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, the motion to dismiss is granted.
I BACKGROUND
In his complaint, the plaintiff claims that, on September 28, 2004, in Simsbury, Connecticut, the defendant negligently caused the front of the motor vehicle which she was operating to collide with the rear of the motor vehicle which the plaintiff was operating, which caused him to sustain personal injuries and to incur damages. No allegation of wanton, reckless, or malicious conduct is set forth. In his prayer for relief, the plaintiff seeks money damages.
The defendant filed her motion on January 24, 2007, within thirty days of the filing of her appearance on December 27, 2006. With her motion, the defendant submitted her affidavit, dated January 17, 2007. Therein, she avers that, at the time of the motor vehicle accident, she was employed by the State of Connecticut at Northwest Connecticut Community College (NCCC) and was acting within the scope of her employment. She states that, at the time, she was operating a 2000 Ford Taurus, which was owned and insured by the State of Connecticut, and that she was operating it with the state's permission. She also states that, at the time of the accident, she was driving to a recruitment function for NCCC.
In her affidavit, the defendant refers to the date of the accident as September 24, 2004, not September 28, 2004 as alleged in the complaint. The reference to September 24, 2004 apparently is a typographical error. In his memorandum of law in opposition (#106), page 2, the plaintiff states that he "is willing to concede that the defendant was acting within the scope of her employment as an employee for the State of Connecticut at the time of the motor vehicle collision that is the subject of this lawsuit."
With her supplemental memorandum (#105), the defendant presented the affidavit of her supervisor, Mark Myers, dated July 11, 2007. In his affidavit, Myers states that, on the date of the accident, he was employed by the state as the Director of Collegiate Education for Deaf and Hard of Hearing Persons at NCCC. He also states that the defendant was employed by the state at NCCC and that, on the date of the accident, she was authorized to drive a state-owned vehicle to Springfield, Massachusetts to attend a recruitment event on behalf of NCCC, as part of her duties as an interpreter for the deaf and hard of hearing, and that she was acting within the scope of her employment when she did so.
The defendant contends that she is entitled to statutory immunity under § 4-165(a) since she was acting within the scope of her employment with the State. In addition, she asserts that the plaintiff's claims are barred by the common law doctrine of sovereign immunity.
As noted above, the plaintiff, in response to the motion, concedes that the defendant was acting within the scope of her employment with the state. He argues that, based on General Statutes 52-556 and the Supreme Court's decision in Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), this "action against this defendant is an action against the state," as to which sovereign immunity has been waived. See plaintiff's memorandum of law in opposition, page 4. He also argues that § 4-165 is inapplicable here.
Section 52-556 provides, "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury." In his memorandum of law, by typographical error, the plaintiff first refers to the statute as § 52-566. However, he quotes the language of § 52-556. Section 52-566, which concerns damages for wilful removal or destruction of a bridge, is clearly inapplicable to this case.
II DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. The Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Peters v. Dept of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction. See 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 308, 875 A.2d 498 (2005); Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002)." Manifold v. Ragaglia, 94 Conn.App. 103, 113-14, 891 A.2d 106 (2006).
The court is guided by recent appellate authority. In two recent decisions involving personal injury claims arising from motor vehicle accidents involving state employee drivers, the Appellate Court has affirmed the dismissal of the actions where only the state employee was made a defendant and the state was not served and made a party to the actions. In Bowen v. Seery, 99 Conn.App. 635, 915 A.2d 335, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007), the plaintiff, also relying on § 52-556 to assert that the court had subject matter jurisdiction, claimed, as does the plaintiff here, that the state was the real party in interest, rather than the named defendant, Kevin A. Seery, a state police officer who was allegedly driving the vehicle which struck the plaintiff's vehicle. See id., 99 Conn.App. 636-37.
There, the court referred to its earlier decision in Bicio v. Brewer, 92 Conn.App. 158, 884 A.2d 12 (2005), where "the plaintiff brought an action against the defendant, the driver of a state owned ambulance, for injuries arising out of a motor vehicle accident." Bowen v. Seery, supra, 99 Conn.App. 638. "Prior to trial, the court granted the defendant's motion to dismiss the first count on the ground that the defendant could not be sued in an individual capacity for negligence because he was immune from suit under § 4-165 . . . On appeal, the plaintiff claimed that the court improperly dismissed the negligence count because the state, although not a named defendant, was the real party against whom relief was sought . . . The plaintiff argued that, accordingly, the court should have applied § 52-556 . . . In affirming the judgment of the trial court, this court noted that the plaintiff had made no attempt to serve process on the state and held that because the state was never made a party to the action, the court lacked personal jurisdiction to render judgment against the state." (Citations omitted; internal quotation marks omitted.) Bowen v. Seery, supra, 99 Conn.App. 639.
In Bowen, the plaintiff sought to distinguish Bicio, claiming that he attempted to add the state as a party prior to judgment, had attempted to serve the state formally, and that the state had been formally notified, appeared, and participated in the proceedings. See Bowen v. Seery, supra, 99 Conn.App. 639. The Appellate Court rejected this argument, finding that Seery was the sole defendant in the action. See id. "There is nothing in the record to show that the plaintiff attempted service on the state in any manner and certainly not pursuant to General Statutes § 52-64." Id. The court found that Bicio was controlling and affirmed the judgment of dismissal. See id., 640.
Section 52-64 provides, "Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the Attorney General's office in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the Attorney General's office in Hartford."
Here, the plaintiff does not contend that he attempted to add the state as a defendant, that the state was served with process, or that the state was formally notified, appeared, and participated in the proceedings. His argument, that this action is an action against the state, mirrors that which was rejected in Bicio. As in Bicio and Bowen, here the undisputed facts show that the only defendant named and served in this action is defendant Slocumb. See Marshal's return, dated October 2, 2006. "Accordingly, the state was never made a party to the action and, as a result, the court lack[s] jurisdiction to render judgment against the state." Bicio v. Brewer, supra, 92 Conn.App. 167-68.
The plaintiff's references to the Supreme Court's decisions in Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), and Prigge v. Ragaglia, 265 Conn. 338, 828 A.2d 542 (2003), are unavailing. Neither of those decisions dealt with a motor vehicle accident involving a state employee/defendant driver and § 52-556. In contrast, both Bowen v. Seery, supra, and Bicio v. Brewer, explicitly did so and are controlling here. Also, in Miller v. Egan, supra, 265 Conn. 302, the state was named as a defendant. The plaintiff relies on four criteria set forth by the Supreme Court there, in order to determine whether an action "is, in effect one against the state and cannot be maintained without its consent . . ." (Internal quotation marks omitted.) Id., 265 Conn. 308. The fact that a suit is "in effect" against the state, does not mean that a suit against the state has been commenced by suing an individual employee. See Bowen v. Seery, supra, 99 Conn.App. 639-40. Prigge v. Ragaglia, supra, 265 Conn. 349, decided on the same date as Miller v. Egan, supra, also cited by the plaintiff to support his argument, stated that, as to the plaintiffs' claims for money damages, Miller was controlling. The fact that the state was not a defendant in that action, where the Supreme Court directed that judgment enter in favor of the named individual defendants, dismissing the plaintiffs' claims against them in their official capacities seeking monetary damages, see id., 265 Conn. 349, is immaterial.
Nothing in the plaintiff's complaint indicates that the defendant is being sued in her official capacity; rather, according to the complaint, she is being sued as an individual for money damages. See, in contrast, Mercer v. Strange, 96 Conn.App. 123, 125, 127, 899 A.2d 683 (2006) (suit against defendants in their official capacities; claims based on Americans with Disabilities Act (ADA) ( 42 U.S.C. § 12101 et seq.) and § 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 794), not General Statutes § 52-556). General Statutes § 4-165 affords statutory immunity to the defendant, who, the plaintiff concedes, was acting within the scope of her employment by the state at the time of the collision. Accordingly, the court lacks subject matter jurisdiction. See Bowen v. Seery, supra, 99 Conn.App. 636, 639; Bicio v. Brewer, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 02 0088940 (February 23, 2004, Brunetti, J.), affirmed, 92 Conn.App. 158.
Even if the court construed the plaintiff's complaint, which seeks money damages, and which is based on claimed common-law and statutory negligence, as being brought against the defendant in her official capacity, sovereign immunity would bar the claim against the defendant. See Miller v. Egan, supra, 265 Conn. 325-27. Again, the court would lack subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted.
It is so ordered.
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