Opinion
No. CV 05 4014766
August 8, 2006
MEMORANDUM OF DECISION
On September 9, 2005, the plaintiff, Shaun Cashman, the commissioner of labor (commissioner), filed a five-count complaint against the defendants, Claywell Electric Company, Inc. (Claywell Electric), Worth Construction Company, Inc. (Worth), Liberty Mutual Insurance Company (Liberty Mutual) and Kurt Claywell, the president of Claywell Electric. This action arises out of Claywell Electric's alleged failure to pay the prevailing wages to its employees on a public works project pursuant to General Statutes § 31-53 in violation of the requirement to pay wages as per General Statutes § 31-71b. Worth was the general contractor on this public works project and the principal on a labor and material bond, Liberty Mutual was the surety on the payment bond on this project and Claywell was a subcontractor on this project.
In count one of the complaint, the only count at issue, the commissioner alleges that Worth, as the general contractor and principal, and Liberty Mutual, as the surety, are jointly and severally liable under § 31-53 for the payment of these "unpaid wages" to the employees in the amount of $134,320.85. The commissioner further alleges that he "made a claim against the surety on the bond pursuant to [General Statutes] § 49-42 for the payment of prevailing wages due" to the employees listed in the complaint, but as of the date of the filing of the complaint, both Worth and Liberty Mutual have refused to tender any payments. Pursuant to General Statutes § 31-72, the commissioner is seeking double damages, attorneys fees, costs and interest from the date the unpaid wages should have been received by these employees.
On October 20, 2005, Worth and Liberty Mutual, filed a motion to dismiss for lack of subject matter jurisdiction, and submitted a memorandum of law in support. On December 19, 2005, the commissioner filed a memorandum in opposition, accompanied by the affidavit of the wage enforcement officer, Frank Royce, and six statements of claims for wages.
Claywell Electric and Kurt Claywell did not join in the motion to dismiss. Hereafter, the term defendants will be used to refer to Worth and Liberty Mutual.
The motion to dismiss was filed more than thirty days following the appearance of Worth. Nevertheless, since the motion is challenging the court's subject matter jurisdiction, the issue must be addressed whenever it is raised. See Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, supra, 544-45.
The defendants argue that count one should be dismissed because the applicable "statute of limitations" is § 49-42(b), a jurisdictional requirement which specifies that suits brought under it must be within one year from the date that payment of the wages at issue was due. Furthermore, the defendants contend that the commissioner "failed to serve [his] [c]omplaint upon Worth Construction and Liberty Mutual within the time period allotted under § 49-42(b)," and "may properly allege entitlement [only] to wages due up to one year prior to serving [his] [c]omplaint, i.e. up to August 8, 2004." The commissioner counters that he is bringing count one for unpaid wages pursuant to § 31-72 not § 49-42, and the statute of limitations that is applicable to § 31-72 is the two-year time limitation in General Statues § 52-596. The commissioner asserts that if the court determines that the statute of limitations in § 52-596 is applicable, the commissioner, as an agency of the state, is not subject to that limitations period, and, in addition, any limitation period was tolled when the employees filed their complaints for unpaid prevailing wages with the labor department. In the alternative, the commissioner contends that even if the statute of limitations enumerated in § 49-42 applies to this case, he is not subject to that statute of limitations, either.
General Statutes § 49-42(b) provides in relevant part: "Every suit instituted under this section shall be brought in the name of the person suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such suit may be commenced after the expiration of one year after the applicable payment date provided for in subsection (a) of section 49-41a . . ." (Emphasis added.)
General Statutes § 52-596 provides: "No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558."
Normally, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the tine limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
First, in order to determine which statute of limitations is applicable to this case, this court must determine whether count one is being brought pursuant to § 31-72 or § 49-42. In Commissioner of Labor v. C.J.M.Services, Inc., 73 Conn.App. 39, 65, 806 A.2d 1105 (2002), aff'd in part, rev'd in part on other grounds, 268 Conn. 283, 842 A.2d 1124 (2004), a case relied on by the commissioner in the present case, the plaintiff, the commissioner of labor, claimed that the general contractor on a public works project and an insurance company, as the surety on the payment bond, were liable to the defendant subcontractor's employees. The court stated that "[t]he commissioner's claim is entirely statutory. His right to sue depends upon three remedial statutes that intersect under the circumstances of this case. These are the wage collection statute, § 31-72, the public works statute, [General Statutes] § 49-41, and the bond enforcement statute, § 49-42. Each of them was designed to help unpaid employees to be made whole. As remedial statutes, each of them must be construed broadly in favor of employees whom the legislature intended to benefit." Id., 47. "The wage collection statute authorizes the commissioner of labor to bring a civil action to recover twice the amount of wages due and empowers him to take any legal action necessary to recover unpaid wages on behalf of employees. The public works statute, § 49-41, requires general contractors on public works projects to obtain a bond to ensure payment to all employees working on the projects. The bond enforcement statute, § 49-42 authorizes . . . [a] suit on a payment bond to collect unpaid wages." Id., 49-51.
After a review of these three statutes in light of the commissioner's authority to initiate a legal action against the defendants, the court stated: "We are persuaded that the statutory scheme created by our legislature was intended to ensure that employees on public works projects are paid the wages to which they are entitled. To limit the commissioner to a direct claim against the subcontractor would be inconsistent with the requirement that a payment bond be posted for the protection of these employees." Commissioner of Labor v. C.J.M.Services, Inc., supra, 73 Conn.App. 55. The court subsequently held that the "the commissioner is authorized by the wage collection statute to collect unpaid wages on behalf of a subcontractor's employees and, in the case of a public works project, may do so by enforcing payment on the bond against a general contractor and its surety." Id., 65. It may be deduced from this case that the commissioner derives his authority from § 31-72 to sue a general contractor and surety on the payment bond pursuant to § 49-42. The statute of limitations, however, was not at issue in that case, and therefore, the court did not have to determine whether § 52-596 or § 49-42, the one-year time limitation for a suit on a payment bond, would be applicable to the unpaid wage claims brought under § 31-72 for a claim against the contractor and surety on the payment bond.
In the present case, the commissioner argues that since he derives his authority to sue under § 49-42 through § 31-72; Commissioner of Labor v. C.J.M. Services, Inc., supra, 73 Conn.App. 55-65; the two-year statute of limitations in § 52-596 is applicable to this action. The plaintiff further argues that as a subdivision or agency of the state, the commissioner would be exempt from the statute of limitations in § 52-596 based on Dept. of Labor v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0829600 (August 17, 2005, Booth, J.) (39 Conn. L. Rptr 810), for the collection of the prevailing wages under § 31-53.
Indeed, if the applicable statute of limitations to the facts of the present case is § 52-596, then the commissioner would be correct in his argument that the statute of limitations referenced in § 52-596 would be inapplicable to him as an agency or subdivision of the state, as the Superior Court in Dept. of Labor v. Lawrence Brunoli, Inc., supra, 39 Conn. L. Rptr. 810, found. Therein, the plaintiff, the commissioner of labor, brought an action pursuant to § 31-72 against the defendant, Lawrence Brunoli, Inc., a general contractor. Id., 811. The defendant moved for summary judgment on the ground of its first special defense, that the plaintiff was barred by the statute of limitations from bringing the action. Id. The plaintiff argued that the two-year statute of limitations enumerated in § 52-596 was inapplicable to the state "by its express terms." Id. The court then quoted the following language from State v. Goldfarb, 160 Conn. 320, 323-24, 278 A.2d 818 (1971): "It may be stated we think as a universal rule in the construction of statutes limiting rights, that they are not to be construed to embrace the government or sovereignty unless by express terms or necessary implication such appears to have been the clear intention of the legislature, and the rights of the government are not to be impaired by a statute unless its terms are clear and explicit, and admit of no other construction . . . The State holds the immunities in this respect belonging by the English common law to the King." (Internal quotation marks omitted.) Dept. of Labor v. Lawrence Brunoli, Inc., supra, 39 Conn. L. Rptr. 811.
The trial court further acknowledged that the Goldfarb court found that General Statutes § 45-205, the applicable statute of limitations, did "apply to the state because it imposed `a condition precedent to a legal recovery against a solvent estate.' State v. Goldfarb, supra, 160 Conn. 325." Dept. of Labor v. Lawrence Brunoli, Inc., supra, 39 Conn. L. Rptr. 811. Nevertheless, the court stated therein that "the language of State v. Goldfarb, on the issue of whether statues of limitations apply to actions brought by the state, has been relied upon in numerous subsequent decisions where the question was considered." Id. It also stated: "The defendant attempts to factually distinguish the present case from those cited by the plaintiff but disregards the principle upon which those cases are decided: that the rights of the sovereign cannot be impaired by statute unless the legislature has done so explicitly . . . Here, the statute, is silent as to whether the state is bound by the limitation set forth therein. Accordingly, the defendant's motion for summary judgment [on the basis of its first special defense that the plaintiff's action is barred by the statute of limitations] is denied." Id., 812. While it may be true that § 52-596 is silent, and, therefore, may not render an agency of the state subject to the statute of limitations for an action brought pursuant to § 31-72 for recovery of prevailing wages under § 31-53, this court must still determine, which is the appropriate statute of limitations, § 52-596 or § 49-42, when a claim for wages is brought by the commissioner for payment by the contractor and surety under a payment bond.
As discussed previously, in Commissioner of Labor v. C.J.M. Services, Inc., supra, 73 Conn.App. 39, the one case which dealt with both § 49-42 and § 31-72, the Appellate Court found that the commissioner of labor could sue a contractor and surety on behalf of a subcontractor's employees pursuant to § 49-42, based on the broad grant of authority in § 31-72 "that necessarily includes the enforcement of a payment bond pursuant to the bond enforcement statute [§ 49-42]." Id., 52-53. At issue, however, was not which time period applied to commence this legal action. The court, therefore, focused its discussion on the liability under the payment bond of the surety and of the general contractor. The Appellate Court agreed with the commissioner that the surety was "liable to the subcontractor's employees for payment of wages pursuant to the public works statute and the bond enforcement statute." Id., 56.
"The language of the public works statute and the bond enforcement statute establishes the liability of a surety on a bond. First, the public works statute requires that all such projects be bonded in the amount of the contract and that the surety or sureties on the bond must be approved by the officer awarding the contract. Second, the bond enforcement statute sets out a procedure that requires a claimant to serve notice of claim on both the principal and the surety that issued the bond. General Statutes § 49-42. Once notice has been properly served, if the surety refuses to pay, then the claimant may bring an action on the payment bond in the Superior Court." Commissioner of Labor v. C.J.M. Services, Inc., supra, 73 Conn.App. 57.
As to the liability of the general contractor who was the principal on the payment bond for the public works project, the court stated: "As with the liability of [the surety], the general contractor's liability as principal on the bond is established by the language of the public works statute and the bond enforcement statute. The public works statute expressly states that the bond `shall have as principal the name of the person awarded the contract.' General Statutes § 49-41(a). The procedure for enforcement set out in the bond enforcement statute includes the principal on the bond, as well as the surety. A claimant must first serve notice of the claim on both the surety that issued the bond and the general contractor named as principal on the bond. General Statutes § 49-42(a). If the surety refuses to pay, then the claimant may bring an action on the payment bond in the Superior Court." Commissioner of Labor v. C.J.M. Services, Inc., supra, 73 Conn.App. 59.
This court concludes from the Appellate Court's discussion of the liability of the general contractor and the surety, that if the commissioner, who is authorized to collect payment on behalf of the subcontractor's employees, files a claim on the payment bond for their prevailing wages against the general contractor and surety, the commissioner must follow the procedures set forth in the bond enforcement statute, which includes the one-year time period following the date the unpaid wages should have been received by the subcontractor's employees. This conclusion that § 49-42's time limitation is the applicable one to commencing an action on the payment bond is further bolstered by the rules of statutory construction. "In construing statutes that potentially conflict a court should avoid interpretations which create a genuine conflict and should seek to harmonize the law by adopting interpretations, if possible, to avoid conflicts between the statutes. See Stern v. Allied Van Lines, Inc., 246 Conn. 170, 179 [ 717 A.2d 195] (1998). One well recognized approach to achieve this goal is to subordinate the more general legislation to the statute which deals with a specific subject. See Coregis Ins. Co. v. Fleet National Bank, 68 Conn.App. 716, 723 [ 793 A.2d 254] (2002). Additionally, it is a well recognized rule of statutory construction that the legislature is presumed to know the existing statutes and the judicial interpretation of them. Mack v. Saars, 150 Conn. 290, 298 [ 188 A.2d 863] (1963)." Envirotech of Fairfield County, Inc. v. Bartholomew, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0185441 (August 27, 2002, Adams, J.) ( 33 Conn. L. Rptr. 157, 159). Since § 31-72 is the vehicle with which to bring a § 49-42 action, § 49-42 is the more specific statute, and therefore, its statute of limitations should apply to the present case.
Assuming that the statute of limitations applicable to the present case is indeed enumerated in § 49-42, this court must next determine whether this statute of limitations is inapplicable to the commissioner just as the statute of limitations enumerated in § 52-596 is. In support of applying the one-year time period in § 49-42 to the commissioner, the defendants argue that it is not a statute of limitations, but rather a jurisdictional limitation, because the statute gives a right that did not exist at common law. Thus, the defendants maintain that the commissioner may properly allege entitlement only to wages due up to one year prior to serving its complaint on the defendants, namely, August 8, 2004.
The defendants cite to American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 384 A.2d 378 (1978) in support of their motion that the limitations period enumerated in § 49-42 applies to the plaintiff. In that case, the court stated: "We have concluded that the General Assembly intended General Statutes §§ 49-41 and 49-42 to operate in general conformity with the federal statute, popularly known as the Miller Act (40 U.S. §§ 270a-270e) . . . The provision of § 49-42 affected by Public Act No. 192, which sets forth the time limitation within which suit must be commenced under the statute, therefore, is not to be treated as an ordinary statute of limitation, but as a jurisdictional requirement establishing a condition precedent to maintaining an action under that section. United States v. Gullard, 504 F.2d 466, 468 (9th Cir. [1974]); United States v. Home Indemnity Co., 489 F.2d 1004 (7th Cir. [1973]); United States v. General Ins. Co. of America, 339 F.2d 194 (6th Cir. [1964]).
In American Masons' Supply Co., the issue was not whether the statute of limitations of § 49-42 applied to the state; instead, the issue was whether an amendment to § 49-42(b), with a different statute of limitations than the earlier version of § 49-42(b), applied retroactively to a cause of action where a plaintiff, a building materials supplier, commenced a lawsuit to obtain reimbursement for material it allegedly furnished to a subcontractor.
The federal Miller Act was repealed in 2002.
"As a general rule, where a statute gives a right of action which did not exist at common law, the time fixed for bringing the action is a limitation of the liability itself, and not of the remedy alone . . . [S]ee . . . 51 Am.Jur.2d, Limitation of Actions, § 21." (Citations omitted.) American Masons' Supply Co. v. F.W. Brown Co., supra, 174 Conn. 223-24. The commissioner argues that the facts of American Masons' Supply Co., are distinguishable from the facts of the present case because that case did not involve the state or a subdivision of the state.
Although the facts of American Masons Supply Co., are distinguishable from those of the present case, the legal proposition that the time period in § 49-42 is jurisdictional in nature, is equally applicable to the plaintiff herein. As the court in State v. Goldfarb, supra, 160 Conn. 320, found, in cases where a statute creates a condition precedent to bringing a lawsuit, it is not an ordinary statute of limitations, and that statute applies to the state, not just to a private entity. Therefore, pursuant to § 49-42, the plaintiff failed to timely commence his action and since this constitutes a jurisdictional defect, the motion to dismiss count one is granted.
The defendants concede that five employees do not entirely fall outside of the statute of limitations. These include: Rajendra Balbachan, Paul Bialobrzski, Gordon D. Sheppard, Henry B. Thompson and Johnny Kent Ward.