Opinion
No. CV 05 4002599
May 30, 2006
MEMORANDUM OF DECISION RE WHETHER ACTION SHOULD BE DISMISSED BASED UPON SOVEREIGN IMMUNITY
This cases arises from a motor vehicle accident between the two plaintiffs, Gary Czectka and Patricia Jackman, and the individual defendant, Ken Perez, who is a Connecticut State Trooper. In their four-count complaint against the defendants, the state of Connecticut and Trooper Perez, the plaintiffs allege the facts as hereinafter articulated. The accident occurred on November 29, 2003, when Czectka, who was driving a truck with Jackman as his passenger, collided with Perez's state police cruiser as Czectka was attempting to make a left turn. At the time, Perez was driving the cruiser in the course of her employment, and she had approached the truck from the rear and was attempting to pass it on the left. Both plaintiffs sustained injuries in the accident.
In the summons, the plaintiffs identify this plaintiff as Gary Czectka, however, in the complaint and subsequent documents, the parties refer to him as Gary Czeczotka.
On January 26, 2005, the plaintiffs filed a four-count complaint. In counts one and two, respectively, Czectka and Jackman allege that the state is liable for the injuries they sustained due to the negligence and carelessness of Perez pursuant to General Statutes § 52-556. In counts three and four, respectively, Czectka and Jackman allege that Perez is liable to them because she was operating her cruiser in a reckless manner and in excess of her statutory authority as a state police officer. They seek unspecified money damages and double or treble damages pursuant to General Statutes § 14-295.
General Statutes § 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."
Connecticut State Trooper Keri Perez has filed a motion to dismiss counts three and four on the ground that, in these counts, the plaintiffs are bringing claims for monetary damages against her in her official capacity, and the claims are, therefore, barred by the doctrine of sovereign immunity. The plaintiffs have filed an objection to the motion to dismiss, and a memorandum in support thereof.
Prior to filing their objection, the plaintiffs filed a request to amend in which they ask the court to allow them to amend the complaint to remove the references they make therein to Perez's official capacity and to add language to counts three and four to clarify that they intended to allege their claims against Perez in her individual capacity. Perez filed an objection to the plaintiffs' motion to amend in which she raises the following arguments: the court must consider her motion to dismiss before it rules on the plaintiffs' motion to amend; and the plaintiffs should not be permitted to amend the complaint to allege claims for recklessness against her in her individual capacity because such claims would be barred by the applicable statute of limitations. The plaintiffs counter that the court should consider their request to amend before deciding Perez's motion to dismiss. They contend that they mistakenly used language in their complaint that indicated that they were only suing Perez in her official capacity, when they intended to sue her in both her official and her individual capacity. They argue that this mistake is a misnomer, which they should be permitted to correct by amendment pursuant to General Statutes § 52-123.
General Statutes § 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 Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 100, 680 A.2d 1321 (1996), our Supreme Court determined once the defendant state filed a motion to dismiss a complaint on the ground that it was insufficient to allege a claim that "fits within the parameters of the limited waiver of the state's sovereign immunity," the trial court was required to decide the merits of that motion before it considered the opposing party's motion to amend its complaint. As the court explained, "the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . .
As noted above, in the present case, the plaintiffs are seeking to amend the allegations of the complaint to change the capacity in which they sued Perez in order to avoid the parameters of Perez's sovereign immunity. Therefore, in accordance with Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., this court must first decide the merits of Perez's motion to dismiss. Perez's motion is premised on her contention that, in counts three and four, the plaintiffs bring their claims against her in her official capacity, and they seek monetary damages. Perez argues that under Connecticut law, the doctrine of sovereign immunity bars claims for monetary damages against state officials who are sued in their official capacities. The plaintiff's only objection to the motion to dismiss is that, in a decision in a related case, the court already determined that Perez cannot rely on the doctrine of sovereign immunity to shield her from liability for this accident. See Kemper Auto Home Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 04 0569339 ( Kemper action). Perez replies that the decision in the Kemper action is distinguishable.
The Supreme Court discussed the principles and the test that applies to the issue raised in Perez's motion to dismiss in Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003). As to the former, the court explained that pursuant to the doctrine of sovereign immunity, "[w]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citation omitted; internal quotation marks omitted.) Id., 313.
"We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citations omitted; internal quotation marks omitted.) Id., 314. Regarding claims for monetary damages, the court specifically noted that, in the absence of a statute that expressly authorizes such claims, "a plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner." Id., 317. See General Statutes §§ 4-141 through 4-165b.
Moreover, the court expressly clarified that this condition also applies to claims for money damages against state officers acting in their official capacity, stating that, "regardless of whether the plaintiffs have alleged that state officers acted in excess of statutory authority, the plaintiffs must seek a waiver from the claims commissioner before bringing an action against the state in the Superior Court." Miller v. Egan, supra, 265 Conn. 318. On the other hand, "[i]f the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Id., 307.
In the present matter, the plaintiffs are only seeking monetary damages, and they do not allege or argue that they sought a waiver from the claims commissioner before bringing their action. Thus, the crucial issue is whether counts three and four may be reasonably construed to allege claims against Perez in her individual capacity.
In Miller v. Egan, supra, 265 Conn. 308, the court explained that "[t]he determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). In Spring . . . [the court stated that] `[t]he vital test is to be found in the essential nature and effect of the proceeding.' . . . The court then set forth four criteria to determine whether an action is `in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.' Id."
Here, the claims alleged in counts three and four meet the first two criteria in that the plaintiffs bring these claims against Keri Perez, who is a state trooper, and the claims pertain to her conduct while she was operating a police cruiser in the course of her employment. They also satisfy the third criteria in that as was also the case in Miller v. Egan, the plaintiffs never allege that they are bringing their claims against Perez individually, and instead they repeatedly allege that they are bringing their claim against Perez in her official capacity. See Miller v. Egan, supra, 265 Conn. 309.
Specifically, in the summons, the plaintiffs list Keri Perez as a defendant "in her official capacity," and state her address as "Connecticut State Police, PO Box 2794, Middletown, CT 06457"; in the caption of the complaint, the plaintiffs again identify her as a defendant "in her official capacity as a Connecticut State Trooper"; throughout the complaint, the plaintiffs refer to Perez as "the defendant agent-operator"; in paragraph five of count one, which the plaintiffs incorporate by reference into counts three and four, the plaintiffs allege that, at the time of the accident, Perez was operating the cruiser in the course of her employment as a state trooper; in paragraph eighteen of counts three and four, the plaintiffs allege that at the time of the accident, Perez was "operating in excess of her statutory authority as a state trooper"; and in the return of service, the state marshal attests that he served the writ, summons and complaint upon Perez by in hand service to "Trooper Seth G. Mancin of the Commissioner's Staff of Department of Public Safety, Authorized to Accept Service for Keri Perez, in her official capacity of Connecticut State Police at 1111 Country Club Rd., Middletown, CT 06457 . . ."
According to General Statutes §§ 52-54 and 52-57(a), a plaintiff may serve process on an individual defendant who resides within Connecticut either by handing a true and attested copy of the process to the defendant, or leaving a true and attested copy of it at the defendant's usual place of abode. In numerous decisions, the judges of the Superior Court "have unequivocally held that [a] person's place of employment is not sufficient for abode service absent any showing of residency." (Internal quotation marks omitted.) Ramsey v. Webster Bank, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196992 (July 20, 2004, Wilson, J.).
These specific factors serve to distinguish counts two and three from the claim that was alleged against Perez in the Kemper action, which the plaintiffs refer to in their objection to the motion to dismiss. In that case, Kemper, which had issued a motor vehicle policy to Jackman, brought a two-count complaint in which it alleged a negligence claim against the state under § 52-556, and a recklessness claim against Perez individually. Perez filed a motion to dismiss on the ground, among others, that the Kemper's claim against her was barred by the doctrine of sovereign immunity. Specifically, Perez argued that although Kemper specifically alleged that was bringing its claim against her in her individual capacity, it was actually bringing the claim against her in her official capacity. The trial court examined the complaint in light of the applicable principles of law and concluded that the claim "may be construed as bringing claims against [Perez] in her individual capacity and therefore these claims are not banned by the doctrine of sovereign immunity." Kemper Auto Home Ins. Co. v. State, Superior Court, judicial district of New London, Docket No. CV 04 0569339 (January 24, 2005, Hurley, J.). The court relied, in part, on the specific language of the complaint in which Kemper clearly stated that it was bringing its claim against Perez in her individual capacity. Accordingly, the court denied Perez's motion to dismiss. Id.
According to the complaint in that action, Jackman owned the truck that Czectka was driving, and Kemper sought to recover the benefits it had paid to Jackman for the damages that her vehicle sustained in the accident.
Subsequently, the Kemper action was consolidated with the present action, and, on July 26, 2005, Kemper withdrew the action.
The court finds that the essential nature of plaintiffs' allegations regarding Trooper Keri Perez is more akin to the nature of allegations that the court concluded were "official capacity" claims in Miller v. Egan, supra, than to the nature of the allegations that the court determined were "individual capacity" claims in the Kemper action. As the court noted in Miller v. Egan, supra, 265 Conn. 309, "the right of a plaintiff to recover is limited by the allegations of [his] complaint . . . We do not countenance a variance [from the allegations of a complaint] which alters the basic nature of a complainant's cause of action . . ." (Citations omitted; internal quotation marks omitted.)
Finally, it is not clear that the claim at issue does not satisfy the fourth factor. A judgment against Keri Perez may not subject the state to liability in that the claim is premised on recklessness. General Statutes § 52-141d(a), which requires the state to indemnify its officers and employees "from financial loss and expense arising out of any claim, demand, suit or judgment by reason of [their] alleged negligence . . . or other act or omission resulting in damage or injury," only applies if the officers were "found to have been acting in the discharge of [their] duties or within the scope of [their] employment and such act or omission is found not to have been wanton, reckless or malicious." (Emphasis added.) Nevertheless, the claim will effect the activity of the state to the extent that the state is obligated to provide Perez with a defense to it pursuant to § 52-141d(b).
Clearly, the plaintiffs have alleged in counts three and four claims for monetary damages against Keri Perez in her official capacity. In light of this conclusion, the plaintiffs were required to seek the permission of the claims commissioner to bring the present action. See Miller v. Egan, supra, 265 Conn. 318. In cases such as this, in which "the plaintiffs have not alleged, nor does the record reveal, that they received permission from the office of the claims commissioner to bring claims for damages against the state . . . the doctrine of sovereign immunity bars that portion of their claims, and they [are] properly dismissed by the trial court." Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, cert. denied, 275 Coun. 920, 883 A.2d 1252 (2005).
Conclusion
For the foregoing reasons, the court hereby grants Trooper Keri Perez's motion to dismiss the third and fourth counts of the plaintiff's complaint.