Opinion
No. CV08-5002900-S
October 21, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On December 14, 2007, the plaintiff, Theresa Jeffries, filed a three-count complaint against the defendants, Denise Mondell and David Lapworth. In counts one and three, the plaintiff alleges the following facts against the defendant. On January 18, 2006, at approximately 1:03 p.m., the plaintiff was driving south on Interstate 91, prior to exit seven in New Haven, in the center right lane of four lanes. At the same place and time, Lapworth was driving in the center left lane and the defendant was driving in the left lane. At that time, the defendant "lost control of her automobile and proceeded to swerve into the center left lane thereby causing . . . [L]apworth to swerve into the center right lane causing the [p]laintiff . . . to swerve into the right lane, lose control of her vehicle and strike the jersey barrier adjacent to the right shoulder." As a result of the defendant's negligence and recklessness, the plaintiff suffered injuries.
The present motion to strike is directed at the second special defense of Denise Mondell. Hereinafter, she will be referred to as "the defendant."
On May 18, 2009, the defendant filed an answer and special defense. In her answer, the defendant denied that she was negligent and reckless. On February 19, 2010, the defendant filed a request to amend and amended answer and special defenses. In her second special defense, the defendant alleges that, pursuant to General Statutes § 4-165, she is immune from liability, with respect to any claim for negligence, because she is an assistant attorney general employed by the state of Connecticut who was operating her motor vehicle at the time of the accident within the scope of her employment. On May 21, 2010, the plaintiff filed a motion to strike the defendant's second special defense on the ground that the defendant has failed to allege sufficient facts to support a claim of immunity thereunder.
In her special defense, the defendant alleges that the collision was due to the negligence and carelessness of the plaintiff.
On March 1, 2010, the plaintiff filed an objection to the defendant's request to amend. On March 24, 2010, the plaintiff's objection was overruled. The amended answer is similar in all respects as to the original, except as to the inclusion of a second special defense.
DISCUSSION
"Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Emphasis added.) Practice Book § 10-39(a). Therefore, "a plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In ruling on [a] . . . motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
"It is well settled that the defense of sovereign immunity can be raised for claims brought directly against the state or against state employees acting in their official capacities. Likewise, the defense of statutory immunity [ § 4-165] can be raised for claims brought against state employees acting in their individual capacities." (Emphasis added.) Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). The Supreme Court has "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." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "[T]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).
"Our Supreme Court has set forth criteria to determine whether an action is against the state or against a defendant in an individual capacity. The four criteria for an action against the state are: (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." (Internal quotation marks omitted.) Hultman v. Blumenthal, 67 Conn.App. 613, 621, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). If all four of the criteria are met, then the action is brought against the state employee in his or her official capacity. "Because an action against state employees in their official capacities is, in effect, an action against the state . . . the only immunity that can apply is the immunity claimed by the state itself — sovereign immunity." (Citation omitted.) Mercer v. Strange, supra, 96 Conn.App. 128; see also Hultman v. Blumenthal, supra, 620 ("[T]he immunity provided by § 4-165 does not apply if the doctrine of sovereign immunity does apply.").
If any one of the four criteria is not met, however, then the action is brought against the state employee in his or her individual capacity. "If 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." Miller v. Egan, supra, 265 Conn. 307. Under such circumstances, however, statutory immunity may still apply. Section 4-165(a) provides: "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 damage or injury shall present it as a claim against the state under the provisions of this chapter." (Emphasis added.)
The Supreme Court has expressly considered the parameters of § 4-165. "[S]tate employees may not be held personally liable for their negligent actions performed within the scope of their employment . . . State employees do not, however, have statutory immunity for wanton, reckless or malicious actions, or for actions not performed within the scope of their employment. For those actions, they may be held personally liable, and a plaintiff who has been injured by such actions is free to bring an action against the individual employee." (Emphasis added.) Miller v. Egan, supra, 265 Conn. 319. General Statutes § 4-165(b) sets forth a number of actions that are considered within the "scope of employment." Section 4-165(b) is not all inclusive, however. Therefore, in order to understand the meaning of "scope of employment," the Supreme Court has considered the legislative intent of the statute. "The manifest legislative intent expressed by chapter 53 [of which § 4-165 is a part] is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable . . . This would include the vicarious liability of a private person for the acts of his employees arising out of the scope of their employment under the doctrine of agency or respondeat superior." (Citation omitted.) Spring v. Constantino, supra, 168 Conn. 571.
Under the doctrine of respondeat superior "[a] master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment — for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do . . . In the course of his employment means while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment . . . [I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Antinerella v. Rioux, 229 Conn. 479, 499 n. 17, 642 A.2d 699 (1994).
The Supreme Court has also interpreted the use of similar language in other statutes to establish that "scope of employment" includes situations in which the employee was either "reasonably fulfilling the duties of employment or doing something incidental to it." (Emphasis added.) Id., 498. In Antinerella, the court concluded that conduct intended to effectuate an illegal fee splitting scheme was not conduct incidental to employment or beneficial to the government as the employer. Id. "Rather, the defendant's alleged actions were motivated by purely personal considerations entirely extraneous to his employer's interest." Id., 499.
The plaintiff now seeks to strike the defendant's second special defense claiming that the defendant's actions on the date in question did not fall within the scope of her duties. This court disagrees. The duties of an assistant attorney general are expressly listed in General Statutes § 3-125. These duties include court appearances. Since the court cannot come to an assistant attorney general, an assistant attorney general must go to the court. Therefore, such travel plainly falls within the scope of their duties. See Martin v. Brady, 261 Conn. 372, 377-79, 802 A.2d 814 (2002); see also Palacio v. Perez, Superior Court, judicial district of New Britain, Docket No. CV 950467723 ( 25 Conn. L. Rptr. 419) (September 14, 1999, Graham, J.). The motion to strike is denied.
Cf. F. Bacon, The Essays (Penguin Books 1985 Ed.) c. 12, p. 94.