Opinion
No. HHD X04 CV-07-5015172 S
January 2, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#101)
This matter is before the court concerning the defendant State of Connecticut's (State) motion to dismiss. The parties submitted memoranda, affidavits, and other evidence. The court heard oral argument and received evidence on October 30, 2008, and held a hearing on November 25, 2008 at which witnesses testified and other evidence was received. Thereafter, the parties submitted post-hearing briefs, dated December 19, 2008.
I Background
In its complaint, the plaintiff, C.R. Klewin Northeast, LLC (Klewin) bases its action on General Statutes § 4-61. Klewin alleges that it entered into a construction contract with the State on October 6, 1998, to construct the New Resource Learning Center and Lowe Building at Manchester Community College (the project). It also alleges that, on August 1, 2001, it filed claims with appropriate documentation. Klewin asserts that department of public works (DPW) staff and Klewin reached a compromise agreement, but the State continues to dispute Klewin's claims and has refused to pay the compromise amount. In paragraph 8, Klewin alleges, "[t]he agency head of the Department received timely written notice of Klewin's claims and the factual basis therefor." Further, Klewin alleges that DPW issued a certificate of acceptance for the project on December 23, 2004, and that this action is brought within three years of that date. Klewin seeks money damages and interest.
In seeking dismissal, the State contends, based on sovereign immunity, that the court lacks jurisdiction over the subject matter. The State argues that Klewin failed to comply with the mandates of General Statutes § 4-61 concerning notice in connection with its claim.
In response, Klewin argues that it gave notice of its claim to the DPW Commissioner by hand-delivery of a letter in April 2004, with a copy of its August 2001 claim. In addition, Klewin contends that it met § 4-61's notice requirements by providing submissions in previous litigation, which related to the same construction project, wherein it sought a mandamus against state officials concerning a settlement agreement. Further, Klewin claims that it met the statutory notice requirements by serving the DPW Commissioner with a July 2005 complaint in a case which was not returned to court.
Finally, Klewin asserts that, even if the court does not find that the DPW Commissioner was given written notice of its claim and the factual basis for that claim, the State should be estopped from denying notice. In its interim order, dated November 3, 2008 (#117), the court addressed Klewin's estoppel argument, and concluded that, in this context, estoppel is not a legally cognizable exception to the State's sovereign immunity.
II Standard of Review
"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. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter." Practice Book § 10-31(a)(1).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy present 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). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, supra, 282 Conn. 134.
"A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits." Russell v. Yale University, 54 Conn.App. 573, 577, 737 A.2d 941 (1999). "[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31(a). "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101, 919 A.2d 1002 (2007). "A motion to dismiss may . . . raise issues of fact and would, therefore, require a hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
In this context, where hearings were held, and the parties presented witnesses and submitted documentary evidence, including depositions, the court is not required to assume the truth of the allegations in the complaint. See Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Witczak v. Gerald, 69 Conn.App. 106, 108, 793 A.2d 1193 (2002). Rather, the purpose of an evidentiary hearing is to permit the court to "determine the disputed facts necessary to decide the jurisdictional issue." Knipple v. Viking Communications, Ltd, 236 Conn. 602, 608, 674 A.2d 426 (1996).
At an evidentiary hearing, "[t]he [trial] judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007). Here, the court determined that a hearing was required to consider disputed facts concerning whether § 4-61's notice requirements were met.
III Discussion A
Section 4-61 "waives the state's sovereign immunity with respect to certain claims arising under public works contracts . . ." Dept. Of Transportation v. White Oak Corp., 287 Conn. 1, 2-3, 946 A.2d 1219 (2008).
"Sovereign immunity relates to a court's subject matter jurisdiction over a case . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law." (Citations omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 257, 932 A.2d 1053 (2007) (concerning the same project). "Exceptions to this doctrine are few and narrowly construed under our jurisprudence." Id., 258.
In Dept. Of Transportation v. White Oak Corp., supra, 287 Conn. 8, the Supreme Court reiterated "the well settled principle that when the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions, because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." (Internal quotation marks omitted.) "[A] party who seeks to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of § 4-61." Id., 9. "As we repeatedly have observed, § 4-61 was intended to carve out a narrow and limited exception to sovereign immunity." Id., 13.
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." (Citation omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-02, 920 A.2d 1000 (2007).
"If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., supra, 287 Conn. 8.
Section 4-61(a) provides, in relevant part, "[a]ny person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Public Works, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract . . ." Similarly, § 4-61(b) and (f) provide for alternative methods of dispute resolution, through arbitration and mediation.
"The scope of this exception must be construed strictly, and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction." (Internal quotation marks omitted.) Dept. of Transportation v. White Oak Corp., supra, 287 Conn. 13.
The required notice of claim must be furnished by the claimant, either individually or through a representative, "to the agency head of the department administering the contract . . ." See General Statutes § 4-61(a). "Information provided by third party sources to the commissioner, no matter how precise, cannot cure defects in the plaintiff's notice . . . [T]he cases make clear that this question must be determined on the basis of the facts of the particular case . . . [T]he trial court must first determine whether, as a matter of law, a purported notice patently meets or fails to meet . . . the statutory requirements." (Citations omitted; internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 27-28, 615 A.2d 1040 (1992).
Section 4-61's language is plain and unambiguous and does not yield absurd or unworkable results. While it does not define what is meant either by "notice of each such claim" or "the factual bases for each such claim," decisional law concerning different, though similar, statutes provides useful guidance. See Rivera v. Meriden, 72 Conn.App. 766, 771, 806 A.2d 585 (2002). In interpreting the meaning of § 4-61's notice provisions, other courts have looked to Supreme Court decisions which interpret a similar statute, which also provides a limited waiver of sovereign immunity, and which also sets forth notice of claim requirements, General Statutes § 13a-144, the defective highway statute. See Peabody N.E., Inc. v. State of Connecticut Department of Transportation, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 97 0482290 (May 1, 1998, Stengel, J.) (22 Conn. L. Rptr. 90), affirmed on other ground, 250 Conn. 105, 114-15, 735 A.2d 782 (1999); State Department of Transportation v. Blakeslee Arpaia Chapman, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 97 0572036 (October 16, 1997, O'Neil, J.).
In its memorandum in support of its objection to the motion (#111), page 3, Klewin acknowledges that the notice requirement in § 13a-144 contains "a very similar requirement."
Section 13a-144 provides, in relevant part, "[a]ny person injured in person or property through the neglect or default of the state . . . by means of any defective highway . . . which it is the duty of the Commissioner of Transportation to keep in repair may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought . . . unless 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 has been given in writing within ninety days thereafter to the commissioner . . . The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice."
Concerning § 13a-144's notice requirements, the Supreme Court stated, "[t]he 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, 610 A.2d 1287 (1992).
"The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit . . . Sufficiency of the notice is to be tested with reference to the purpose of the notice, i.e., that a claim is being made . . . We conclude that injured parties, to meet the requirements of the statute, must . . . notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition . . . In this case, although the communications provided details about the accident, the injured party failed to notify the commissioner that a claim would be made." (Citations omitted; emphasis omitted and added; footnote omitted; internal quotation marks omitted.) Id., 18-19.
As the Appellate Court recently emphasized, "[a]n injured party must . . . inform the commissioner of its intent to file a claim." (Emphasis in original.) Salgado v. Commissioner of Transportation, 106 Conn.App. 562, 570, 942 A.2d 546 (2008). There, the purported notice was found to be deficient since "it did not place [the defendants] on notice that the plaintiff also intended to pursue a defective highway action." (Emphasis added.) Id.
Thus, under § 13a-144, a claimant fails to satisfy the notice requirements if he or she fails to notify the commissioner that a formal claim would be made. Providing details about an accident is not sufficient.
A similar notice of claim provision in another statutory scheme, the Workers' Compensation Act, General Statutes § 31-375 et seq., "requires, not simply that the plaintiff alert the employer or the commissioner to the existence of any compensable claim, but rather that the plaintiff inform the employer or commissioner of his or her intent specifically to pursue such a claim under the state act." Chambers v. Electric Boat Corp., 283 Conn. 840, 852-53, 930 A.2d 653 (2007) (concerning § 31-294c(a)).
General Statute § 31-294c(a) provides, in relevant part, "Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed."
In Chambers v. Electric Boat Corp., supra, as here, the plaintiff argued that the factual elements of the claim had been provided in the purported notice. See id., 283 Conn. 857. The Supreme Court stated that "the relevant inquiry when evaluating a notice of claim under § 31-294c(a) is whether it adequately apprises the employer, not only of those elements, but also of the employee's intent to seek benefits under the state act." Id., 857. "The failure to have filed a notice of claim is, not simply a defect in notice, but rather no notice at all." Id., 859.
Likewise, under § 4-61, providing the head of the agency with details about a request for an adjustment to a contract or about a contract dispute is insufficient. A purported notice is insufficient under § 4-61 if it lacks an essential element: notice of intent to pursue a claim for damages, either by an action in court or through an arbitration claim.
In explaining § 4-61, the Supreme Court stated, "[o]ur construction of § 4-61 finds further support in the legislative policies that the statute was designed to implement, namely, increasing the quality of construction in the state while, at the same time, reducing its cost by permitting contractors to sue the state directly to resolve disputed claims arising under public works contracts quickly and efficiently. If we were to construe § 4-61 as a blanket waiver of sovereign immunity that permits a contractor to file multiple actions against the state, the cost to the state of public works contracts effectively would increase while, at the same time, the speed and efficiency with which such claims are resolved effectively would decrease. In light of the spirit and purpose of § 4-61, we cannot conclude that the legislature intended such a result. See BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 622, 775 A.2d 928 (2001) (`[s]tatutes are to be construed in a manner that will not thwart [their] intended purpose [internal quotation marks omitted])." Dept. Of Transportation v. White Oak Corp., supra, 287 Conn. 14.
Just as the legislative purpose of § 4-61 would be thwarted by allowing a contractor to file multiple actions against the state, so it would also be thwarted by broadly construing § 4-61 to permit a request for a contract adjustment or a change order to rise to the level of a notice of a claim. The legislature cannot have intended that result either. The statutory requirement that explicit notice that a claim is being made shall be provided in writing to the head of the agency was not intended to require such an official to comb through and piece together correspondence or other provided documentation in order to discern whether or not a claim is being made.
B
With those principles in mind the court turns to the evidence presented concerning notice. Plaintiff's Exhibit 1 (from the November 25, 2008 hearing), is a change order request concerning the project, dated August 2001. The cover page is entitled, "CHANGE ORDER REQUEST." Included therein is an August 31, 2001 letter to Richard Piotrowski at DPW, from Michael J. D'Amato, Klewin's then-president. It is undisputed that Piotrowski was never the "agency head of the department," see General Statutes § 4-61(a), that he never served as the Commissioner of DPW. The first sentence of the letter states that Klewin "has performed a review of contract documents and schedules in an effort to compile this report regarding project events and the feasibility of an equitable adjustment." The letter goes on to discuss various contract issues. At page 16 of 16, it states, "[i]ncluded in this report is the back up documentation for your review." Also included are numerous documents, including change order proposals.
At oral argument, counsel for the State advised the court that the Bates-stamping on the documents, bearing the designation "PW," is not DPW's stamping; rather, those markings were part of earlier litigation.
Klewin does not contend that notice of its claim was provided to the agency head of the department, pursuant to General Statutes § 4-61, in August 2001, through the provision at that time of Plaintiff's Exhibit 1. As stated, it is undisputed that Piotrowski, to whom the August 31, 2001 letter was addressed, never was the head of DPW.
Rather, Klewin argues that, in April 2004, it provided such notice through its Exhibit 2, which includes an April 15, 2004 letter to then-DPW Commissioner James T. Fleming, which referred to the August 31, 2001 "request for an equitable adjustment to the contract in the amount of $2,678,256." In his testimony, D'Amato stated that he hand-delivered this letter to DPW on April 15, 2004. D'Amato also testified that certain exhibits were presented with his letter, which are included in Exhibit 2.
In the April 15, 2004 letter, Klewin recounted the history, up to that point, of its effort to get paid. For example, it noted that its request for an equitable adjustment had been reviewed by an accounting firm and that, in March 2002, it submitted three change orders for an "agreed to amount of $1,535,518." Further, it stated, at page 2, that Klewin was informed, in March 2004, that the package which included Klewin's change order was not funded by the state bond commission, but that "the package, including our request, will be resubmitted to the bond commission at the next meeting." The letter also states that "[w]e have not submitted a claim requesting interest, home office overhead or other items." The letter closes with the following sentences: "[w]e have been out of pocket more than $2,000,000 since November 2000. This has caused a significant impact on our business. All we ask is to be treated fairly and honestly and that payment due us be made." No reference to any intent to pursue a claim, pursuant to § 4-61, or by suit or arbitration, is contained in this letter.
Although D'Amato testified that other documents were presented with his April 15, 2004 letter, the court is unpersuaded that any documents were included with it. In contrast to the August 2001 letter, which explicitly referred to the inclusion of "back up documentation for your review," the April 15, 2004 letter does not refer to any enclosures or documents being included. The letter includes only conclusory references to delay claims. Thus, the April 15, 2004 letter is deficient also in meeting § 4-61(a)'s additional requirement, that the notice provide the "factual bases for each such claim." See State Department of Transportation v. Blakeslee Arpaia Chapman, Inc., supra, Superior Court, Docket No. CV 97 0572036 (request for change orders is not a notice of claim under § 4-61).
The documents which purportedly were enclosed with the April 15, 2004 letter consist of a somewhat revised cover sheet to the August 2001 "Change Order Request;" a document entitled "Open Cost Proposals," and a copy of the 16-page letter to Piotrowski, dated August 31, 2001. None of these purported enclosures provided notice that Klewin intended to pursue a formal claim.
The subsequent correspondence and meeting minutes also reflect the fact that, instead of providing notice of a formal claim, Klewin continued to pursue another, different route, by attempting to obtain additional payment for its work on the project through an informal settlement process. The record reflects that this was an intentional choice by Klewin. "The familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea [behind] them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's minds . . . This rule of public policy has been repeatedly applied by [our Supreme Court]." (Internal quotation marks omitted.) Provident Bank v. Lewitt, 84 Conn.App. 204, 209-10, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580 (2004).
By letter dated April 28, 2004, which had been approved by Fleming, DPW Deputy Commissioner David O'Hearn requested copies of documents from Klewin and stated that, after review, DPW would like to meet with Klewin to discuss its request. See Plaintiff's Exhibit 4. D'Amato followed up in a May 4, 2004 letter by sending a copy of a change order proposal, dated March 14, 2002. See Plaintiff's Exhibit 5. In his hearing testimony, D'Amato agreed that the change order represented a revision to the August 2001 submission.
In June 2004, DPW project manager Joel Baranowski forwarded a list of questions concerning Klewin's submissions. See Plaintiff's Exhibit 6. After a meeting, Klewin responded by letter dated June 30, 2004. See Plaintiff's Exhibit 7.
DPW and Klewin held a meeting in September 2004 to discuss Klewin's request for an equitable adjustment and time extension. See Plaintiff's Exhibit 8, Meeting Minutes, dated November 15, 2004. D'Amato, O'Hearn and Baranowski attended. Baranowski prepared the meeting minutes. At page 1, he stated, "Mr. D'Amato reported negative financial impacts to Klewin as a result of the expenditures on the project and the costs incurred while the requests [sic] was in the State's hands. According to Mr. D'Amato[,] C.R. Klewin has hired a claims consultant and the value of the claim far exceeds the amount originally requested ([over] $5M) C.R. Klewin is preparing to submit the claim formally." See Plaintiff's Exhibit 8.
According to the minutes, Klewin had stated that it was willing to accept a compromise amount of "$1.2M if the matter can be resolved in a short period of time." See Plaintiff's Exhibit 8.
At the end of this document, on page 2, the following statement appears: "The above represents the conversation and decisions arrived at as I understand them. Please contact me if any corrections are required." No correspondence sought any corrections. D'Amato testified that he received the minutes and that they are accurate. Thus, the minutes confirmed that, as of September 2004, long after April 2004, when Klewin's purported notice was presented, Klewin's claim was not a formal claim. The fact that Klewin was claiming to be owed money had not converted its claim into a formal claim under § 4-61.
That Klewin had not filed a formal claim was confirmed also by an email message from then-Commissioner Fleming, dated September 20, 2004, to Marc Ryan, the Secretary of the Office of Policy and Management, and to Mark Herzog, Chancellor of the community-technical college system. See Defendant's Exhibit A. Fleming requested a meeting to discuss Klewin's "potential claim." He stated that "Klewin has not yet filed a formal claim and it might be best to try and resolve this before a formal claim is submitted."
On December 27, 2004, the State issued a certificate of acceptance, as of December 23, 2004, concerning the project. See Plaintiff's Exhibit 10.
Fleming and the attorney general recommended to Governor Rell (governor) that a settlement be accepted and that disbursement of the funds be authorized. On March 8, 2005, the governor signed a certificate authorizing DPW to settle the compromised claim in the amount of $1.2 million. See Fleming Deposition Exhibit 16 (Plaintiff's Exhibit 1 from the October 30, 2008 hearing). Klewin was not paid. See C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 254.
The certificate referred to General Statutes § 3-7(c), which provides, in relevant part, "Upon the recommendation of the Attorney General, the Governor may authorize the compromise of any disputed claim by or against the state or any department or agency thereof, and shall certify to the proper officer or department or agency of the state the amount to be received or paid under such compromise."
The lack of notice by Klewin of an intent to pursue a formal claim by suit or arbitration jibes with former Commissioner Fleming's hearing testimony concerning DPW's practices when dealing with the myriad requests for contractual adjustments which came in during his tenure at DPW. Fleming explained that, in general, DPW attempted to work things out before reaching the stage of a formal claim. To him, a formal claim was one that would be expected to end up in court, or in mediation or arbitration, or to go to the Claims Commissioner. In contrast, if, informally, in order to avoid a formal claim, an agreement was negotiated, and approved by the governor, it would be referred to the bond commission to be paid. D'Amato testified that his understanding of a formal claim was the same as Fleming's.
While Fleming testified, in his deposition, and at the hearing, that, in 2004, Klewin was claiming that the State owed Klewin money on the project, and provided information in support of its claim to DPW; and that DPW conducted an investigation which led to the recommended settlement, such testimony does not amount to evidence that Klewin provided a notice of claim which met the statutory requirements. Likewise, O'Hearn's similar deposition testimony also does not amount to such evidence.
If § 4-61 were construed to permit a finding of adequate notice, based on informal processes, which may lead to resolutions and settlements, discussions leading to such results would be discouraged, which is contrary to the public policy of encouraging such dispute resolution. See Schroeder v. Triangulum Associates, 259 Conn. 325, 341, 789 A.2d 459 (2002). Understandably, engaging in such efforts would be chilled if such informal communications were used to provide evidence which would later be deemed to satisfy § 4-61's strict requirements.
A useful illustration is provided by Lussier v. Department of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), concerning an action brought under § 13a-144, which is cited by Klewin's post-hearing brief, pp. 8-9, for the proposition that "there is no claim that the commissioner had not received actual notice . . . of the action . . . or that he had been misled to his prejudice." Id., 228 Conn. 352. That statement by the Supreme Court is contained, not in its discussion of the notice of claim, but in its discussion of the mis-designation, in the summons, of the department of transportation as the defendant, which was found to amount to a misnomer, and which fell within the purview of General Statutes § 52-123. See id., 228 Conn. 352-53.
"Section 52-123 provides, "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside, or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
In a separate, subsequent discussion, the Supreme Court in Lussier addressed the notice of claim which was provided there. See id., 228 Conn. 353. In contrast to Klewin's February 15, 2004 letter, which is devoid of a notice of claim, the first sentence of the notice in Lussier apprised the commissioner of the claimant's intent to file a formal claim: "In compliance with Sec. 13a-144 of the Connecticut General Statutes the following notice is being reported to you." (Internal quotation marks omitted.) Lussier v. Department of Transportation, supra, 228 Conn. 353.
The court finds that Klewin's April 15, 2004 letter (part of Plaintiff's Exhibit 2) patently fails to meet the statutory requirements. It did not provide notice of Klewin's intent to pursue a formal claim, and the factual bases thereof, as required to "fit . . . precisely within the narrowly drawn" notice requirements of General Statutes § 4-61(a). Dept. Of Transportation v. White Oak Corp., supra, 287 Conn. 9. "[C]onstructive notice of a potential claim does not equate with specific notice of an actual one." Chambers v. Electric Boat Corp., supra, 283 Conn. 855.
C
Klewin also contends that it met § 4-61's notice requirements either by unspecified "submissions" in the prior mandamus action, C.R. Klewin Northeast, LLC v. Fleming, supra, Superior Court, judicial district of Hartford, Docket No. CV 06 4019420, or by service of a July 2005 summons and complaint which was never returned to court. Analogy to § 13a-144 is again useful in analyzing these contentions. Section 13a-144, quoted above, states that its similar notice of claim requirement "shall be deemed complied with if an action is commenced, by a writ and complaint . . . within the time limited for the giving of such notice." In contrast, § 4-61 contains no such language.
"Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them . . . It is a principle of statutory construction that a court must construe a statute as written . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (Citation omitted; internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 431-32, 927 A.2d 843 (2007).
Accordingly, as illustrated by § 13a-144, if the legislature had intended that service of a summons and complaint or service of pleadings in another action would satisfy § 4-61's notice requirement, "it would have expressed that intent explicitly." (Footnote omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 169, 931 A.2d 890 (2007). "In the absence of some special provision, the commencement of suit does not satisfy a statutory notice requirement." Pacelli Brothers Transportation, Inc. v. Pacelli, 189 Conn. 401, 414, 456 A.2d 325 (1983).
In addition, LoRusso v. Hill, 139 Conn. 554, 95 A.2d 698 (1953), cited by Klewin, was decided when the notice requirements were less specific, under former General Statutes § 2201, a predecessor to § 13a-144, which replaced it in 1963. Only subsequently, in 1971, in Public Act 38, S.1, was § 13a-144 amended to require that the notice must be provided in writing. In LoRusso, the court determined that service of a complaint on the highway commissioner in a former action complied with the then-existing notice requirement. See id., 558. The writ was served on the defendant in his capacity as highway commissioner. See id., 556. It was found that the writ satisfied the requirement of providing "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 . . ." See id., 557. The complaint in the former action "alleg[ed] the time and place of the accident and describ[ed] in detail the defect in the highway and the injuries which it caused." Id., 556.
Here, in contrast, as discussed, there has been no showing as to what documents were served on the commissioner in the mandamus action or what they contained. Arguments by counsel in memoranda are not substitutes for such evidence. "It is well settled that representations of counsel are not, legally speaking, `evidence.'" Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985).
Moreover, it is clear that the mandamus action was brought to compel the defendants to implement the terms of a settlement agreement between Klewin and DPW. There, the trial court issued "a writ of mandamus ordering [the state comptroller] to pay $1.2 million to the plaintiff in compliance with a prior agreement to settle a claim for extra costs that the plaintiff had incurred for construction work performed at Manchester Community College, pursuant to a contract between the parties." C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 252.
The Supreme Court has stated that a dispute over a purported settlement agreement does not amount to a "disputed claim . . . under such contract," as provided in § 4-61(a). "The legislature's use of the word `under,' as opposed to a broader term such as `related to,' `connected with' or `derived from,' indicates an intent to authorize only those disputed claims against the state that fall directly under the contract itself. To permit an action against the state for a claim that is related to or connected with a public works contract would expand the limited waiver of immunity inherent in § 4-61 beyond the statute's plain language. In light of our long-standing policy favoring a narrow construction of statutory provisions in derogation of the state's immunity from suit, we will not extend the reach of § 4-61 absent a clear indication of such an intent by the legislature. We are not persuaded that the legislature intended such an expansion of § 4-61." Department of Public Works v. ECAP Construction Co., 250 Conn. 553, 559, 737 A.2d 398 (1999).
"It is clear, however, that the parties' purported settlement agreement, assuming that it could be proven, constitutes a separate agreement . . . that, although related to the original contract, does not arise `under' that contract. This conclusion is bolstered by the fact that the issues to be resolved in the arbitration of ECAP's disputed claim of a breached settlement agreement would bear little, if any, relation to the arbitration of ECAP's disputed claim under the parties' underlying contract." (Footnote omitted.) Id., 562.
There, the Supreme Court also stated that "our interpretation of § 4-61 does not leave contractors without any remedy against the state in circumstances in which, as in this case, a contractor claims that the state has breached an agreement to settle an arbitrable dispute. Under General Statutes § 4-160, the claims commissioner may authorize an action against the state on any claim for which the state could be held liable if it were a private person." Department of Public Works v. ECAP Construction Co., supra, 250 Conn. 562 n. 8.
Here, in addition to the fact that § 4-61 does not provide for meeting its notice requirements by commencement of an action, Klewin has not shown that the prior mandamus action, which concerned a settlement agreement, constitutes a formal notice of claim as to Klewin's claims under the parties' underlying contract. See General Statutes § 4-61(a).
Likewise, the July 6, 2005 complaint, which was not returned to court, and as to which the parties stipulated that copies of same were in former Commissioner Fleming's and the Attorney General's files, also does not amount to a notice of claim which complies with § 4-61(a), for the additional reason that, as discussed, the statute requires that such a notice provide "the factual bases for each such claim." Review of that complaint shows that it consists of general, conclusory allegations, such as that "DPW badly designed and administered the Project." See July 6, 2005 complaint, count one, ¶ 5. Klewin also alleged that "[t]hese problems" resulted in changes to the project, "which made Klewin's job more difficult and expensive," and "also caused delays which resulted in Klewin and its personnel spending significantly longer on the job than it had planned and costing Klewin significant amounts of money." See July 6, 2005 complaint, count one, ¶¶ 6, 7. These allegations of bad design and "problems," are devoid of factual underpinning and, as a matter of law, do not comply with § 4-61(a)'s notice requirement.
In addition, the court is unpersuaded as to how or when this complaint was provided to Fleming. No marshal's return was provided as evidence that it was served. Instead, in an affidavit, Klewin's counsel avers that he asked a marshal to serve it on Fleming and that the marshal "represented to me that he made the service, but neither my office nor [the marshal]'s office could find the Marshal's return." See affidavit, ¶ 7. The statement that the marshal "represented" to counsel that service was made is hearsay and must be disregarded by the court. The fact that copies of this complaint were in Fleming's and the Attorney General's files does not amount to notice in compliance with § 4-61.
CONCLUSION
For the foregoing reasons, the court concludes that Klewin has not shown that it complied with the notice requirements of General Statutes § 4-61. Based on sovereign immunity, the court lacks subject matter jurisdiction. Accordingly, the motion to dismiss is granted.