Opinion
No. CV-09-5029942S
February 5, 2010
RULING ON MOTION TO DISMISS (#106)
The plaintiff Denise Artis (Artis) brought this negligence action in one count against the defendant Crystal Highsmith-Brooks (Brooks), a fellow state employee, arising out of a motor vehicle accident, which occurred on July 26, 2007 on Boston Avenue in Bridgeport, Connecticut, when Brooks was operating a state-owned vehicle in which Artis was a passenger. The State of Connecticut then moved to intervene as a co-plaintiff alleging that it had "paid and has become obligated to pay a sum of money to the plaintiff" in workers' compensation benefits. Thereafter, Brooks filed an answer admitting that she "was operating the state-owned vehicle with the consent and permission of the state and in the course of her duties for the state," (¶ 8), that Artis was a fellow state employee and a passenger, (¶¶ 1, 8), and that as she "began to move from the left lane into the right lane . . . contact occurred with another vehicle," (¶ 2). By way of special defense, Brooks alleged that the action was barred pursuant to General Statutes § 4-165.
On September 23, 2009, Brooks filed a motion to dismiss "on the grounds that [this action] is barred by General Statutes § 4-165 and the court lacks subject matter jurisdiction over the same." In response, on January 15, 2010, Artis filed an objection to the motion to dismiss claiming that she had a right to bring this action under the provisions of General Statutes § 31-293a which provides an exception to the exclusivity of the workers' compensation scheme and permits an employee to sue a fellow employee for her negligence in the operation of a motor vehicle.
General Statutes § 4-165(a) provides, in relevant part, that: "No state . . . employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of . . . her duties or within the scope of . . . 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."
General Statutes § 31-293a provides, in relevant part, that: "If an employee . . . has a right to . . . compensation under this chapter on account of injury . . . caused by the negligence or wrong of a fellow employee . . . no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle . . ."
In McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981), the Supreme Court held that "[t]he exception granted by General Statutes § 31-293a to all employees must give way to the immunity granted specifically to state employees in General Statutes § 4-165." Relying on its reasoning in Edmundson v. Rivera, 169 Conn. 630, 363 A.2d 1031 (1975), the court reconciled the conflict between the two statutory provisions by deferring to the legislature's power, in enacting § 31-293a, to have specifically abrogated the existing statutory immunity for state employees provided in § 4-165. McKinley v. Musshorn, supra, 185 Conn. 623. In light of the legislature's failure to repeal or modify § 4-165, state employees retain their immunity from suit by fellow employees. McKinley remains good law.
Artis seeks to avoid McKinley's holding by asserting that the statutory immunity granted to state employees by § 4-165 deprives her of equal protection of the law. In order to assert a constitutional claim, however, Artis had to demonstrate to the court that she had exhausted "an available administrative remedy which might well have provided the relief sought and to which § 4-165 expressly directs recourse." Sullivan v. State, 189 Conn. 550, 559, 457 A.2d 304 (1983). Under circumstances analogous to this case, the Sullivan court concluded that the plaintiff, the widow of a state employee who alleged wrongful death due to the negligence of her decedent's co-worker, was free to timely file a claim with the state claims commissioner "who 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 her claim had been rejected by the commissioner or the general assembly, the plaintiff then would have been free to bring her constitutional claim to the Superior Court." Id., 598-99. As a state employee seeking to bring a negligence claim against another state employee, Artis' failure to exhaust her administrative remedies by not filing a claim with the claims commissioner bars this court's review of any constitutional claims. Charleston v. Cahn, 52 Conn.App. 788, 727 A.2d 815 (1999).
Even if recourse to the administrative process were not mandatory, Artis' constitutional challenge to § 4-165 appears to be controlled by the reasoning of Keogh v. Bridgeport, 187 Conn. 53, 444 A.2d 225 (1982). In Keogh, the estate of a deceased fireman sought to bring a wrongful death action against a fellow fireman for negligent operation of a motor vehicle, claiming that the provisions of § 31-293a superseded the provisions of General Statutes § 7-308 which provided immunity to fellow firefighters. The court concluded that the more specific provisions of § 7-308 prevailed over § 31-293a and rejected an equal protection challenge to § 7-308. As here, the plaintiff maintained that municipal firemen, as a class of employees, were denied benefits available to non-municipal employees and thus deprived of equal protection of the laws under the state and federal constitutions. Applying the rational basis test, the court found that because "the municipality . . . indemnifies the liability of its employees" the statute was "a reasonable means of limiting governmental liability." Id., 67-68. Similarly, the state indemnifies the liability of its negligent employees. General Statutes § 5-141d. By immunizing its employees and requiring claims be presented to the claims commissioner, § 4-165 is rationally related to the state's legitimate interest in limiting its liability. "One who challenges the constitutionality of a statute bears the heavy burden of overcoming the presumption of its constitutional validity and of establishing the statute's invalidity beyond a reasonable doubt." Ecker v. West Hartford, 205 Conn. 219, 237, 530 A.2d 1056 (1987). Artis has failed to meet this burden.
General Statutes § 7-308 provided, in pertinent part, that: "If a fireman . . . has a right to [workers' compensation] benefits . . . by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees were engaged in the scope of their employment . . . such fireman . . . shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful or malicious."
Based on the foregoing, the motion to dismiss is granted.