Opinion
No. 446282
April 19, 2005
MEMORANDUM OF DECISION
The court received notice of the filing of the plaintiff's appeal to the Appellate Court. This memorandum is filed pursuant to Practice Book § 64-1.
This action for damages was brought on November 13, 2000, pursuant to General Statutes § 13a-149, for injuries allegedly sustained when the plaintiff fell on a defective public sidewalk on October 7, 1999. After the action has been pending for four years, the defendant has moved to dismiss it because the notice of claim required by the statute was not served on the city clerk.
General Statutes § 13a-149 provides in pertinent part: "Any person injured in person . . . by means of a defective road or bridge may recover from the party bound to keep it in repair . . . No action for any such injury shall be maintained against any . . . city . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation . . . No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city corporation or borough was not in fact misled thereby."
In Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949), the Supreme Court held that "road," as used in the statute, included a sidewalk.
The failure to give the written notice of claim required by § 13a-149 deprives the court of subject matter jurisdiction. Ferreira v. Pringle, 255 Conn. 330, 334-35, 766 A.2d 4000 (2001). Subject matter jurisdiction is never waived and can be raised at any time. Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988). A motion to dismiss is the proper pleading to contest subject matter jurisdiction. Practice Book § 10-31(a)(1).
The parties do not dispute that the notice of claim required by the statute was not served on the City Clerk but, rather, was delivered to or served on the Office of the Corporation Counsel. The defendant claims that this deprives the court of subject matter jurisdiction. The plaintiff argues that this does not deprive the court of subject matter jurisdiction since the notice, in fact, was received by the city.
"The statute created a cause of action wholly unauthorized by the common law . . . Thus, the statutorily required notice is a condition precedent to the cause of action . . . If this requirement is not met, no cause of action exists . . ." (Citations omitted; internal quotation marks omitted.) Warkentin v. Burns, 223 Conn. 14, 17-18 (1992). Thus, for example, the notice must be given by the injured party or his representative, not a third party. Bresnan v. Frankel, 224 Conn. 23, 27, 615 A.2d 140 (1992); Warkentin v. Burns, supra. In addition, the statute "requires that a written description of the accident, its causes, and when and where it occurred be directed to and received by a proper official." Brennan v. Fairfield, 255 Conn. 693, 707, 768 A.2d 433 (2001) (holding that notice addressed to someone other than the town clerk but delivered to and received by the town clerk was not insufficient). The filing of a police report, the United States Court of Appeals for the Second Circuit, sitting in diversity, has held, does not satisfy the statutory notice requirement. Murray v. City of Milford, 380 F.2d 468, 473 (2d Cir. 1967). Cf. Zotta v. Burns, 8 Conn.App. 169, 174, 511 A.2d 373 (1986) (notice to insurance company did not satisfy § 13a-144 requirement that notice be given to the commissioner of transportation).
"Although the interpretation of our state statute by a federal court is not binding on us, it may be persuasive authority." General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 212, 603 A.2d 385 (1992).
The plaintiff argues that although the notice was served on the Office of the Corporation Counsel and not a City Clerk, the purpose of the notice was served. The Supreme Court has stated that "[t]he notice requirement is not intended merely to alert the [defendant] to the occurrence of an accident and resulting injury, but rather to permit the [defendant] to gather information to protect himself in the event of a lawsuit . . . The purpose of the requirement of notice is to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." (Internal quotation marks omitted.) Martin v. Plainville, 240 Conn. 105, 112-13, 689 A.2d 1125 (1997). Implicit in this argument is that the Office of the Corporation Counsel was the ultimate destination of the notice and, therefore, that no prejudice was visited on the defendant.
While it may well be that the Corporation Counsel is the next destination of highway defect notices in New Haven, the court is unwilling to assume that this is so for all of Connecticut's 169 municipalities. It is conceivable that in some towns, it may be the practice for the town clerk to refer such notices to the appropriate person at the Public Works Department or Police Department; in others, the protocol may call for the notice to be forwarded to an outside entity, such as an insurance carrier, for investigation.
Under the General Statutes of Connecticut, municipal clerks are the repositories of a variety of notices which must be given by individuals and other government agencies in order to preserve substantial rights. See, e.g., General Statutes §§ 7-108, 8-3, 8-8, 8-29, 9-164, 9-435, 9-471, 12-93, 12-186, 13b-44, 16-50e, 19a-200, 19a-204, 20-325k[b], 21-73a, 22a-452a(g), (h), 32-662, 45a-653, 46b-80, 49-73a, 49-73d(a), 49-86, 52-325c, 53-402, 54-66(b). As with other rules of law, these filing requirements have an effect on how the municipalities and individuals effected conduct their affairs. See generally Waters v. Autuori, 236 Conn. 820, 835, 676 A.2d 357 (1996) (rules of law have impact on how society conducts its affairs). Town and city clerks, especially in larger municipalities, have established routines and protocols for the handling and forwarding to other appropriate officials of such notices. Indeed, the Secretary of State maintains a school for Connecticut Town Clerks which conducts training programs for municipal clerks in these and other matters. See Regs. of Conn. State Agencies § 7-22a-1.
Regs. of Conn. State Agencies § 7-22a-1 provides in part: "Certification. (a) Eligibility. Candidates may become eligible for recommendation to the Secretary of the State for certification as Certified Connecticut Town Clerks by (1) successful completion of the classroom training program prescribed in paragraph (b) of this regulation, (2) completion of on the job training consisting of not less than two years work in the municipal clerk field, and (3) successful completion of the mandatory final exam,
"(b) Classroom Training Program. The classroom training program shall be administered at the school for Connecticut Town Clerks. Advance notice of the classroom training program shall be mailed to each town clerk's office. The classroom training program shall consist of the following courses: (1) municipal records management, (2) elections, (3) land records, (4) vital statistics, and (5) miscellaneous records, other duties."
Judicially sanctioning the rerouting of § 13a-149 notices, by permitting them to be served on the presumed next destination rather than on town clerk would inject a degree of informality into the notice and subvert rather than serve the purposes of the notice. Even if the Corporation Counsel's Office was the next destination of the notice here, informally serving a secretary or receptionist or other person at such office could frustrate or delay the forwarding of the notice to the person designated within that office for arranging the investigation of the claim.
The plaintiff also invokes the "savings clause" of § 13a-149. That provision states: "No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby." It does appear that there was no intention to mislead, nor does the city claim to have been misled. However, by its explicit terms, "[t]he savings clause applies only where the information provided in the notice is inaccurate . . ." Martin v. Plainville, 240 Conn. 105, 113, 689 A.2d 1125 (1997). The problem here is not with the information in the notice but on whom the notice was served. Moreover, if the legislature had intended to excuse the serving of the notice on the wrong municipal official, it could have plainly provided for this circumstance in the savings clause. It did not.
"[W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Internal quotation marks omitted.) Ensign-Bickford Realty v. Zoning Commission, 245 Conn. 257, 268, 715 A.2d 701 (1998). "Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982). "Furthermore, in construing this statute, we are mindful that exemptions to statutes are to be strictly construed." Carpenter v. Freedom of Information Commission, 59 Conn.App. 20, 24, 755 A.2d 346 (2000). "Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them." State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856 (1940)."
Finally, "a statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way." (Internal quotation mats omitted.) State v. State Employees' Review Board, 239 Conn. 638, 654, 687 A.2d 134 (1997). Because the plaintiff failed to serve the notice on the city clerk as required by General Statutes § 13a-149, the motion to dismiss is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court