Opinion
No. CV02-00774975 S
January 28, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 145)
This action was brought on December 26, 2001 by the Plaintiff, Patrick Mulcahy, a Connecticut State Trooper, for damages he suffered in a collision on January 17, 2000 with the motor vehicle of the Defendant, Michael Mossa. On March 12, 2002, the state of Connecticut, as the Plaintiff's employer at the time of the accident and since it had paid moneys to him pursuant to the Workers' Compensation Act moved that it be allowed to file an intervening complaint in which it seeks reimbursement of its payments. On March 26, 2002 the Defendant filed an answer with special defense to the intervening complaint. On April 1, 2002, the Defendant filed a counterclaim naming Patrick Mulcahy and the State of Connecticut in the caption but referring only to Mulcahy in the body of the counterclaim. On April 9, 2002 the Defendant filed an answer and special defense to the Plaintiff's complaint. The Plaintiff filed a reply to the special defense on April 18, 2002. By Motion filed September 25, 2003, the Plaintiff, Patrick Mulcahy, moved to dismiss the counterclaim as to him on the grounds that it was barred by General Statutes § 4-165 and the doctrine of sovereign immunity. The motion was granted by the court on November 3, 2003. On December 19, 2003 the state filed a reply to the special defense to its intervening complaint. On December 29, 2003 Mossa filed a request for leave to amend the counterclaim in which he sought to bring a claim against the state pursuant to General Statutes § 52-556. That statute provides: "Any person injured in person or property though 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." On January 9, 2004 the state moved to dismiss the counterclaim against it. On January 20, 2004 the court heard argument on the motion to dismiss. It was agreed at that time that the court would consider the motion to dismiss prior to determining the request to amend.
The motion to dismiss alleges four grounds: 1) the counterclaim is barred by the doctrine of sovereign immunity; 2) a counterclaim cannot be filed because the state was not initiating a claim nor was it a party at the time the counterclaim was filed; 3) the counterclaim is barred by the applicable statute of limitations; and 4) the counterclaim was not filed with the answer as required by Practice Book § 10-54.
As an initial matter, Mossa attempts to characterize the motion to dismiss as one attacking the personal jurisdiction of the court over the state which he claims must be raised within thirty days of the filing an appearance and since it was not, it must fail on that basis alone. However, it is well settled that "`the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.' Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994)." Antinerella v. Rioux, 229 Conn. 479, 489 (1994). "`The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.' (Citations omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224 Conn. 693, 698-99, 620 A.2d 780 (1993)." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486 (2003). See also, Practice Book § 10-33. Thus Mossa's claim is without merit.
As to the first ground of the motion to dismiss, the state claims that pursuant to the decision in Isaacs v. Ottaviano, 65 Conn. App. 418 (2001), the mere fact that the state intervenes in a case to collect reimbursement for workers' compensation benefits does not subject it to a counterclaim. In reviewing this claim it is important to consider the allegations of the intervening complaint as well as its statutory authority. The intervening complaint alleges that at the time of the accident the Plaintiff was an employee of the state. It also alleges that the Plaintiff has instituted an action to recover damages from the Defendant, that the Plaintiff's injuries were caused by the negligence of the Defendant and that the Plaintiff's injuries arose out of and in the course of his employment. The state claims that as a result it expended sums for medical attention provided to the Plaintiff as well as sums for payment of compensation to the Plaintiff. Consequently the state requests that any damages recovered in this action be paid and apportioned so that it will be reimbursed for the amounts it has paid and will become obligated to pay under the Workers' Compensation Act.
The statute on which the state relies in intervening and bringing its claim is General Statutes § 31-293. That statute provides:
(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee . . . In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable to the injured employee, If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee.
In Isaacs the court stated: "The employer's claim is a derivative one that depends on the injured employee recovering against the defendant. See Quire v. Stamford, 231 Conn. 370, 376, 650 A.2d 535 (1994); see also Doucette v. Pomes, 247 Conn. 442, 467-69, 724 A.2d 481 (1999). The intervening employer's complaint `does not enlarge the amount of the recovery . . . Rather, the employer may only obtain reimbursement for workers' compensation benefits paid to its employee from any damages recovered by the employee.' Quire v. Stamford, supra, 377. In the cases relied on by the defendant, the state sought to affirmatively establish the defendant's liability to the state. The rationale for allowing counterclaims where the state brings such an action is simple fairness. To allow the state to invoke the jurisdiction of the court to seek to establish that a defendant is liable to it and yet allow it to shield itself from a counterclaim by way of sovereign immunity would be patently unfair. That rationale simply does not apply here, where the state's claim is derivative, does not enlarge the defendant's liability and does not seek to establish that the defendant is liable to the state. For those reasons, the state did not waive its immunity by intervening, and the court improperly denied the state's motion to dismiss. Moreover, to construe the state's intervening complaint as a waiver of sovereign immunity would run contrary to one of the `four overlapping principles that inform the rights established by § 31-293(a).' Durniak v. August Winter Sons, Inc., 222 Conn. 775, 779, 610 A.2d 1277 (1992). One of those principles is that `the statute protects an employer by allowing the employer to obtain reimbursement for workers' compensation benefits from a third-party tortfeasor, either by becoming an intervening plaintiff in the employee's cause of action or by bringing a separate action derivative of the employee's cause of action.' Id., 779. To imply a waiver of sovereign immunity by the state's intervention would expose the state to a loss of its reimbursement. If the plaintiff were to prevail against the defendant, the state's recovery from the plaintiff's judgment would be negated if the defendant were successful on the counterclaim." Id. 423-4. Thus the state's intervention in this matter does not operate as a waiver of sovereign immunity.
Mossa argues that the state has expressly waived sovereign immunity pursuant to General Statutes § 52-556 and therefore the counterclaim is proper. That statute does allow for a suit against the state where a party claims to have been injured through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state. However suit pursuant to that statute must be brought within two years from the date of the accident. Isidro v. State of Connecticut 62 Conn. App. 545, 547 (2001). Here the accident occurred on January 17, 2000. The counterclaim was not filed until April 1, 2002, more than two years after the accident. However Mossa argues that pursuant to General Statutes § 52-584 he is allowed to bring a counterclaim against the state even if the statute of limitations has expired. That statute provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." Mossa argues that since the counterclaim was filed before the pleadings were closed, it was brought within the applicable statute of limitations. Nevertheless, if the court were to allow the filing of a counterclaim against the state when it has intervened simply to seek reimbursement of workers' compensation benefits it has paid, that would violate the principles stated in Isaacs. If the provisions of General Statutes § 52-584 are construed to extend the time in which an action can be brought against the state pursuant to General Statutes § 52-556 where the state has so intervened that would, in essence, constitute a determination that such intervention operated as a waiver of sovereign immunity because absent such intervention such a suit would not have been permitted. This is contrary to the explicit holding of Isaacs.
In addition, pursuant to the language of the General Statutes § 52-584 the statute of limitations is extended only where the counterclaim is interposed to defeat a negligence claim made against the counter claimant. The statute states: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, . . . except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." The "such action" referred to in the statute is a negligence action, not an intervening complaint seeking reimbursement of workers' compensation benefits paid. In Hall Brooke Hospital v. Ferrigno, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV01 039 25 44 (Aug. 5, 2003, Doherty, J.) ( 35 Conn. L. Rptr. 255), the court granted the plaintiff's motion for summary judgment as to the defendants' counterclaim. The court stated: "The defendants argue, however, that § 52-584 permits a counterclaim alleging negligence to be interposed at any time before the pleadings are closed. Section 52-584 is [in fact] the only tort statute of limitations to make specific allowance for counterclaims, permitting them regardless of [the] date of the wrong so long as [it is] filed before the pleadings are finally closed. 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 135(c), p. 181. Under § 52-584, a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed. (Emphasis added.) The word `such' has been construed as a related adjective referring back to and identifying something previously spoken of and that it naturally, by grammatical usage, refers to the last precedent. Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988). The last precedent to `such action' in § 52-584 is `action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice.' Thus, pursuant to General Statutes § 52-584 . . . a defendant may interpose a counterclaim in an action for injury to person or property [caused by negligence] at any time before the pleadings are finally closed. (Emphasis added.) Moore v. Sergi, 38 Conn. App. 829, 832 n. 2, 664 A.2d 795 (1995). Because the action initiated by Hall-Brooke to which the defendants interposed a counterclaim is a collection — not negligence — action, the defendants may not avail themselves of the counterclaim exception in § 52-584. See Savings Bank of Rockville v. Wielgos, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 97 0065409 (December 19, 2001, Scholl, J.) (statutory exception does not apply where [t]he original action by the [plaintiff] to which [the defendant] interposed her counterclaim was an action for reformation of the note, collection on the note and for unjust enrichment); McKosky v. Plastech Corp., Superior Court, judicial district of New Haven, Docket No. 426036 (June 13, 2001, Blue, J.) (statutory exception does not apply where original action in which counterclaim was interposed was action asserting statutory wage rights, breach of implied contract, and unjust enrichment); Kenyon Oil Co. v. Milo's Service Station of Harwinton, Inc., Superior Court, judicial district of Waterbury, Docket No. X06 CV 99 0161338 (October 5, 2000, McWeeny, J.) ( 28 Conn.L.Rptr. 321) (statutory exception does not allow for a counterclaim for personal injury or property damage in a contract/collection action); Cooney Bainer, P.C. v. Milum, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 940 246558 (April 8, 1997, DiPentima, J.) (statutory exception does not apply where original action brought by plaintiff is fee collection claim)." (Internal quotation marks omitted.) Thus the statute does not allow for the filing of a counterclaim, beyond the time set forth in the applicable statute of limitations, against an intervening plaintiff where the intervening complaint does not sound in negligence but in a statutory cause of action for reimbursement of workers' compensation benefits paid or to be paid. Therefore Mossa's counterclaim against the state is barred by the statute of limitations. In light of this conclusion, the court need not address the other grounds alleged in the motion to dismiss.
For the reasons stated above, the state's motion to dismiss is granted.
Jane S. Scholl, J.