Opinion
No. MMX CV09 500 6027 S
March 2, 2010
MEMORANDUM OF DECISION
On April 13, 2009, the named defendant Lombardi Tire Auto Repair, LLC ("Lombardi") filed an apportionment complaint against Alexander Sokolow, an employee of the state of Connecticut, who on June 27, 2007, was operating a vehicle owned by the state of Connecticut in a southerly direction on Route 81 in Haddam, Connecticut, when a vehicle driven by the plaintiff's decedent entered such Route 81 and collided with the vehicle being driven by Mr. Sokolow. On July 30, 2009, apportionment defendant Sokolow filed his motion to dismiss such complaint and he alleged that as a state employee he was immune from suit pursuant to General Statutes § 4-165, which provides in part:
(a) No 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.
He also submitted an affidavit setting forth at the time of such accident he was "on the clock" and that he was engaged in the performance of his duties as a state employee although he was returning home and to an office in close proximity to his home.
On August 31, 2009, Lombardi objected to such motion to dismiss. On December 16, 2009, Lombardi filed a supplemental memorandum in support of its objection. On January 6, 2010, apportionment defendant Sokolow filed a supplemental memorandum in support of his motion to dismiss and submitted several pages from his deposition that had been taken after the filing of the motion to dismiss. Lombardi had claimed that because Mr. Sokolow was on his way home that he was not acting within the scope of his employment as a Department of Environmental Protection ("DEP") Parks Supervisor.
Apportionment defendant Sokolow summarized the facts from his deposition setting forth that he was acting within the scope of his employment at the time of the accident as follows:
At his deposition, Alexander Sokolow explained that his work involves traveling to and between state parks, state forests and state DEP offices in a state-issued vehicle. Sokolow deposition, pp. 7-8. The vehicle is not available for his personal use and must be parked at the end of the work day. Accordingly, Mr. Sokolow is "on the clock" and paid for his state service from the time he gets in his car in the morning until he parks the car at his home at the end of the day. Id., at pp. 14-15, pp 50-52.
Mr. Sokolow is on the clock once he gets in his car because his work locations vary day to day. He travels to various state parks and to DEP offices and maintenance facilities in the state parks. He lives in a state-owned home in the Chatfield Hollow State Park and also has an office at a separate maintenance facility in the Chatfield Hollow State Park near his home. Sokolow deposition, pp. 5-14. Mr. Sokolow often works at the Chatfield Hollow maintenance facility or stops at the facility on his way home from another park or DEP facility to drop off supplies at the end of the workday. Id., at pp. 31-32.
Mr. Sokolow testified that on the date of the accident he left a DEP office in Haddam at approximately 4:10 p.m. in his state-owned Chevy Blazer. Sokolow deposition at p. 29. His plan was to stop at the Chatfield Hollow office, drop off some supplies then go to his home and park his state vehicle in the driveway. Id., at 31. The accident occurred at approximately 4:20 p.m. as Mr. Sokolow was driving to the Chatfield Hollow office.
After the accident, Mr. Sokolow was taken to the hospital. He did not return home until after 6:30 p.m. He was paid for a 10.75 hour day by the state, or 7:45 a.m. to 6:30 p.m. minus a lunch break. His ambulance and medical bills were paid by workers' compensation as a work-related injury. Id., at pp. 73-76.
Apportionment plaintiff Lombardi did not dispute these facts, and even if Mr. Sokolow were only traveling to his home when the accident occurred, he still was acting within the scope of his state employment.
As set forth in Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009):
We begin with the well established principles that guide our resolution of the plaintiff's claim. "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 . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted; citations omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006); see Practice Book § 10-31. "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [O]nce raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation marks omitted.) Litchman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006).
As the parties have done in this case, in the context of a motion to dismiss they are entitled to offer evidence. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 (1983). Apportionment plaintiff Lombardi, using a summary judgment standard, has also argued that there are genuine issues of material fact that preclude the granting of the motion to dismiss, but such argument does not avoid the undisputed fact that Mr. Sokolow was acting within the scope of his employment until he returned home from his duties at the end of the work day.
The Appellate Court's recent holdings in Bowen v. Seery, 99 Conn.App. 635, 915 A.2d 335, appeal denied, 282 Conn. 906, 920 A.2d 308 (2007), and Bicio v. Brewer, 92 Conn.App. 158, 884 A.2d 12 (2005), are instructive. In Bowen, the trial court entered judgment of dismissal of the plaintiff's motor vehicle negligence action against a state police officer, although the plaintiff had claimed that the real party in interest was the state of Connecticut rather than such officer. Id., 636. The court dismissed the action after determining that it had no subject matter jurisdiction over the state police officer under General Statutes § 4-165 and that by failing to make the state a party to his action, the plaintiff could not recover under General Statutes § 52-556, which provides as follows:
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.
Id. In Bowen, the Appellate Court set forth the relevant facts of the Bicio case:
The crux of the plaintiff's argument on appeal is that his case is distinguishable from Bicio v. Brewer, supra, 92 Conn.App. 158, so as to make its holding inapplicable here. In Bicio, the plaintiff brought an action against the defendant, the driver of a state owned ambulance, for injuries arising out of a motor vehicle accident. Id., 159-60. The action was brought in two counts, the first sounding in negligence and the second sounding in recklessness. Id. Prior to trial, the court granted the defendant's motion to dismiss the first count on the ground that the defendant could not be sued in an individual capacity for negligence because he was immune from suit under § 4-165. Id., 160-61. The case proceeded to trial on the recklessness count. Id., 161. On appeal, the plaintiff claimed that the court improperly dismissed the negligence count because the state, although not a named defendant, was the real party against whom relief was sought. Id., 162-63. The plaintiff argued that, accordingly, the court should have applied § 52-556. Id., 163. In affirming the judgment of the trial court, this court noted that the plaintiff had made no attempt to serve process on the state and held that because the state was never made a party to the action, the court lacked personal jurisdiction to render judgment against the state. Id., 167-68.
Id., 638-39.
For the foregoing reasons, the court grants the motion to dismiss filed by Alexander Sokolow.