Opinion
No. CV 06 5003421
February 7, 2007
MEMORANDUM OF DECISION RE DEFENDANTS MOTION TO STRIKE
On April 19, 2006, the plaintiff, Reginald Early, filed a three-count complaint against the defendants, Michael Allen and the City of Hartford. In his complaint, the plaintiff, a Hartford police officer, alleges that, while pursuing a fleeing suspect on foot, he was struck and injured by a police cruiser negligently driven by the defendant, Michael Allen, a fellow police officer and employee of Hartford. In count one of his complaint, the plaintiff alleges negligence against Allen. In count one of his complaint, the plaintiff alleges negligence against Allen. In counts two and three of his complaint, the plaintiff alleges causes of action against Hartford under General Statutes §§ 7-465 and 7-101a, respectively.
On June 16, 2006, Hartford filed a motion to strike counts two and three of the plaintiff's complaint. As to count two, Hartford states that the plaintiff's eligibility for workers' compensation benefits prevents him, as a matter of a law, from recovering against Hartford under § 7-465. As to count three, Hartford states that § 7-101a does not grant the plaintiff a direct right of action against Hartford. Hartford has submitted a memorandum of law in support of its motion. On June 26, 2006, the plaintiff filed a memorandum of law in opposition. On July 11, 2006, Hartford filed a reply brief, and on October 16, 2006, the plaintiff filed a supplemental memorandum.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000).
In count two of his complaint, the plaintiff alleges a claim against Hartford under § 7-465. At common law, a municipality was immune from liability for the torts it committed. See, e.g., Abbott v. Bristol, 167 Conn. 143, 150 and n. 2, 355 A.2d 68 (1974). The source of this municipal immunity was the state's sovereign immunity. Hourigan v. Norwich, 77 Conn. 358, 364-65, 59 A. 487 (1904); see 18 E. McQuillin, Municipal Corporations (3d Ed. Rev. 2003) § 53.23, p. 380 ("rule of immunity for governmental acts and liability for corporate or proprietary acts is grounded in common-law sovereign immunity"). The state may, however, abrogate common-law municipal immunity by statute, which it has done, to some extent, by passing § 7-465. "Section 7-465(a) effectively circumvent[s] the general common law immunity of municipalities from vicarious liability for their employees' acts by permitting injured plaintiffs to seek indemnification from a municipal employer for such acts under certain circumstances . . ." (Citations omitted; internal quotation marks omitted.) Myers v. Hartford, 84 Conn.App. 395, 400, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).
Section 7-465 states, in relevant part, that "[a]ny town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person . . . except as set forth in this section, if the employee . . . was acting in the performance of his duties and within the scope of his employment . . ." (Emphasis added.) One exception within this statute is for "physical injury to a person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such injury has a right to benefits or compensation under . . . [the Workers' Compensation Act] by reason of such injury." In its memorandum of law in support of its motion to strike, Hartford argues that § 7-465 does not impose liability in this case, because both the plaintiff and Allen are municipal employees and the plaintiff is eligible for workers' compensation benefits.
The language of § 7-465 appears clear. If the plaintiff and the defendant Allen were both employed by Hartford at the time of the accident and the plaintiff is entitled to workers' compensation benefits, then this statute does not provide a means for the plaintiff to file suit against Hartford. In count two of his complaint, the plaintiff pleads that both he and Allen were police officers working for Hartford at the time of the accident, and that he was injured while pursuing a fleeing suspect. In order to be entitled to workers' compensation benefits under Section 568, the plaintiff must have been an "employee" within the definition of General Statutes § 31-275(9)(A) at the time of his injury and his injury must have "arisen out of and in the course of employment" as defined by General Statutes § 31-275(1). If the facts pleaded in count two of the plaintiff's complaint are true, the plaintiff and Allen are employees as § 31-275(9)(A)(iv) provides that the term employee includes "a salaried police officer or paid member of any police department . . ." and the plaintiff was acting in the "course of employment" at the time of the injury as defined by § 31-275(1) as any time "the employee has been engaged in the line of the employee's duty in the business or affairs of the employer . . ." Since the plaintiff pleads facts establishing that both he and Allen were employees of Hartford and that the plaintiff is entitled to workers' compensation benefits, it would appear as if the plaintiff cannot pursue a cause of action against Hartford under § 7-465.
Although the plaintiff references only § 7-465 as a basis for count two of his complaint, in his memorandum of law, the plaintiff relies on § 31-293a as a basis for his cause of action against Hartford. The plaintiff argues that in spite of the language in § 7-465, a municipal employee plaintiff can bring a direct action against a negligent fellow employee and his employer pursuant to § 31-293a when such an employee is injured in an on-the job motor vehicle accident. In its reply brief, Hartford argues that § 31-293a only permits the institution of suit against an employee's coworkers, not his employer, and, in any event, § 31-293a cannot supercede § 7-465, which specifically precludes imposing liability on Hartford under the facts of this case.
Section 31-293a provides in relevant part: "If an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee's negligence in the operation of a motor vehicle . . ."
The plaintiff's reliance on § 31-293a is misplaced in light of the purpose of the Workers' Compensation Act (the act). It is true that § 31-293a provides for a remedy against a fellow employee in the narrow instances in which such employee causes an injury through the negligent operation of a motor vehicle. This provision does not apply to the injured employee's employer, however, as finding as much would circumvent the clear intention of the legislature to limit the liability of the employer to remedies found within the act.
The act provides, in relevant part, that "[a]n employer . . . shall not be liable . . . for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . ." General Statutes § 31-284. The purpose of the act is to provide fast and reliable compensation to those injured on the job without resort to considerations of fault by imposing strict liability on an employer for all injuries sustained by their employees during the course of their employment. See Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). In exchange for this right to compensation on a strict liability basis, an employee gives up any right to pursue a common-law tort cause of action against his employer. See Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). When an employee is injured on the job, benefits provided by the act are exclusive. Jett v. Dunlap, supra, 179 Conn. 217 ("where a worker's personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred"); see Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994) (the exclusivity provision of the act is a "total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct").
There is also judicial precedent in this state that an employee cannot seek a remedy against an employer for injuries resulting from the negligent operation of a motor vehicle by a fellow employee. The Connecticut Appellate Court had the occasion to visit the propriety of an employee suing an employer for injuries suffered as a result of the negligent operation of a motor vehicle by a fellow employee. In Szczapa v. United Parcel Service, Inc., supra, 56 Conn.App. 325, the plaintiff sought to recover from the defendant employer, alleging that the employer was vicariously liable for the negligent operation of a motor vehicle by the plaintiff's fellow employee. In upholding the trial court's rejection of the plaintiff's argument that § 31-293a should be extended to allow suits against employers in addition to employees, the Appellate Court stated that "such a reading of the statute would contradict what [the legislature] had clearly and unambiguously stated in § 31-284" and ultimately concluded that "§ 31-293a does not authorize the plaintiff's action against his employer arising out of a fellow employee's negligent operation of the employer's motor vehicle." (Citation omitted; internal quotation marks omitted.) Id., 331-32.
Even if § 31-293a were construed to allow a municipal employee to sue his employer in tort under the facts alleged in count two of the plaintiff's complaint, such a construction would permit the language of § 31-293a (found in the workers' compensation act and applicable to all employers) to supercede § 7-465 (a statute specifically dealing with municipal liability). The traditional canons of statutory interpretation when dealing with seemingly conflicting or inconsistent statutes should not allow this. The Connecticut Supreme Court has held that "[t]here is a presumption that the legislature, in enacting a law, does so with regard to existing relevant statutes so as to make one consistent body of law"; Board of Education v. State Board of Education, 278 Conn. 326, 337, 898 A.2d 170 (2006); and that "when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls." Skindzier v. Commissioner of Social Services, 258 Conn. 642, 654, 784 A.2d 323 (2001). Although no court has specifically addressed the interrelationship between the two statutes applicable in this case, the Connecticut Supreme Court has applied the aforementioned statutory construction and held on two occasions, both dealing with fellow employees and municipal employers, that § 31-293a does not supercede more specific statutes. In McKinley v. Musshorn, 185 Conn. 616, 441 A.2d 600 (1981), the court held that the specific language of § 4-165 prevails over the general language of § 31-293a. And in Keogh v. Bridgeport, 187 Conn. 53, 444 A.2d 225 (1982), the court held that § 31-293a does not supercede the language found in § 7-308.
Section 4-165(a) states that "[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or 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."
Section 7-308 states in relevant part that "[i]f a fireman or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious."
It is the opinion of the Court that the canons of statutory construction and the previous holdings of the Connecticut Supreme Court indicate that the language of § 7-465 should supercede that found in § 31-293a. Since the plaintiff has no cause of action against the municipality under § 7-465 (or under § 31-293a), count two of the plaintiff's complaint should be stricken.
In count three of his complaint, the plaintiff alleges a claim against Hartford under General Statutes § 7-101a. Section 7-101a states, in relevant part, that "[e]ach municipality shall protect and save harmless . . . any municipal employee . . . of such municipality from financial loss and expense . . . arising out of any claim, demand, suit or judgment by reason of alleged negligence . . . of such . . . employee while acting in the discharge of his duties." In its memorandum of law, Hartford argues that § 7-101a is only an indemnification statute, requiring municipalities to indemnify municipal employees who injure others in the discharge of their duties, and does not grant a plaintiff a direct right of action against a municipality. The plaintiff has countered, arguing that he is required to allege in his complaint facts sufficient to establish the municipality's obligation under § 7-101a to indemnify its employees for financial losses and expenses arising out of their negligence, which the plaintiff states he has done in count three.
To decide this question, it is first necessary to determine the scope of application of § 7-101a. Well established principles of statutory construction govern the court's analysis of 7-101a. When interpreting any statute, the "objective is to construe the language of the section so as to give effect to the apparent intent of the legislature . . . In our pursuit of that objective, we look to the language of the statute itself, its legislative history, and previous judicial construction . . . Mindful of inherent statutory interrelationships, furthermore, we endeavor to read the statute as a whole and so as to reconcile all parts as far as possible." (Citation omitted; internal quotation marks omitted.) Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986).
The language of § 7-101a gives no indication that the legislature intended the statute to provide an injured person an independent cause of action against a municipality. The statute merely places the burden on a municipality to protect (i.e., to pay the costs of litigation and provide counsel for) and save harmless (i.e., indemnify) its employees who are sued for negligent acts committed in the scope of their employment. The statute says nothing about the relationship between the injured party and the municipality and speaks only of the relationship between the municipal employee and his employer.
While the language of the statute may leave some room for argument, courts have examined the legislative history of this section and have directly answered the question posed by this case. In Kuriansky v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV91 0116189 (March 25, 1992, Rush, J.) [ 6 Conn. L. Rptr. 686], the court, after reviewing the language and legislative history of the statute, stated that § 7-101a is an "`indemnification statute' which mandates that municipalities protect and save harmless municipal officers arising out of claims by reason of the alleged negligence on the part of the employee. The statute is therefore designed to provide indemnification to the employee from the municipality and there is nothing contained in the statute authorizing a direct action . . ." (Citation omitted.) See Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985) ("[b]y its terms, General Statutes § 7-101a(a) is a provision in this indemnification statute which protects municipal officers and full-time municipal employees from financial loss and expenses arising out of damage suits . . ."); Atwood v. Ellington, 427 F.Sup.2d 136, 142 (D.Conn. 2006) ("[t]his statute governs allocation of legal expenses between a municipality and its employees who are subject to civil suits, but does not provide a direct cause of action against a municipality"); Karbowicz v. Naugatuck, 921 F.Sup. 77, 78 (D. Conn. 1995) (§ 7-101a does not provide direct cause of action against municipality); Carretta v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 92 0125560, (April 15, 1993, Rush, J.) [ 8 Conn. L. Rptr. 608] ("there is nothing in the statute [§ 7-101a] authorizing a direct action against a municipality").
The plaintiff's reliance on § 7-101a as a basis for his cause of action is misplaced. A fair reading of the statute, its legislative history and prior judicial interpretation makes clear that this statute does not give an injured party a direct cause of action against a municipality. Rather, in passing this section, the legislature countenanced two potential causes of action: one in which an injured party files claim against a liable municipal employee; and a second, in which the liable municipal employee files claim, for indemnification, against his municipal employer. There are no previous judicial constructions of § 7-101a that point in a different direction, nor is there any legislative history contradicting this finding. As § 7-101a, without more, cannot stand alone as a cause of action, count three of the plaintiff's complaint should be stricken.
CONCLUSION
For the reasons stated herein, Hartford's motion to strike counts two and three of the plaintiff's complaint are granted.