Opinion
NNHCV116023067.
11-29-2012
Ashley SANDERS et al. v. STATE of Connecticut.
UNPUBLISHED OPINION
GOLD, J.
The defendant, state of Connecticut, has moved the court to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction, asserting that the claims raised therein are barred by the doctrine of sovereign immunity. For the reasons that follow, the court concludes that the jurisdictional question presented by the defendant's motion to dismiss cannot be resolved on the basis of the current record. Accordingly, the motion to dismiss is hereby denied.
FACTS
In the complaint dated August 15, 2011, the plaintiff, Ashley Sanders, alleges that on October 19, 2009 at approximately 12:45 p.m ., she was operating a car owned by the plaintiff, Rhonda Velez, and was traveling in the left-most lane on Interstate 91 northbound. The plaintiffs allege that a truck owned by the defendant and being operated by its employee was traveling in the same lane, a few cars ahead of the car being operated by Sanders. The plaintiffs further contend that, at that time, the " defendant's truck stopped without warning to block the left lane, causing the few cars in front of plaintiff [Sanders] to suddenly veer to the right and plaintiff's vehicle to then collide into the back of the [defendant's] truck ..." Plaintiffs' Complaint, First and Second Count, ¶ 4. On the basis of these factual assertions, the plaintiffs allege that the defendant " is liable to the plaintiff[s] for the actions of its employee pursuant to Connecticut General Statutes Section 52-556." Plaintiffs' Complaint, First Count, ¶ 10, Second Count, ¶ 7.
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 ."
Although recognizing in its motion to dismiss that § 52-556 " is an exception to the doctrine of sovereign immunity and creates a cause of action against the state"; Defendant's Memorandum of Law in Support of Motion to Dismiss, 3; the defendant argues that this statute does not afford the plaintiffs a cause of action under the facts of this case. In support of its claim and in conjunction with its motion to dismiss, the defendant has submitted an affidavit of David Astarita (Astarita), the driver of the truck involved in the collision with the plaintiffs' vehicle. Astarita states that he was " assist[ing] a work crew on Interstate 91 North in New Haven" and " was assigned to be the fourth ‘ crash truck’ to warn oncoming motorists of road work and lane closures ..." Affidavit, ¶ ¶ 6-7, ¶ 11. Astarita avers that " [a] few minutes prior to the accident, [he] stopped [his] vehicle straddling the left shoulder and left travel lane of Interstate 91 North in New Haven and turned on [the truck's] strobe lights." Id., ¶ at 8. The affidavit further provides that " a sign stating ‘ Left Lane Closed’ was affixed to the rear of [his] truck, " and that the truck " was not moving when the plaintiff's car hit [it]." Id., ¶ ¶ at 9-10. Finally, Astarita asserts that his truck " was parked on the highway to warn traffic of the upcoming lane closure and road work." Id., ¶ at 11.
Although challenging the plaintiffs' right to commence this cause of action, the defendant neither disputes that it owned and insured the truck at issue, nor that its employee was driving the truck in the course of his employment with the defendant at the time of the collision.
Given Astarita's sworn representations and the absence of any counter-affidavits submitted on behalf of the plaintiffs, the defendant argues that it is not in dispute that, at the time of the collision, the truck here was parked and being used as a warning signal. On that basis, the defendant claims that, as a matter of law, there can be no right of recovery against the state. Specifically, the defendant maintains that Rivera v. Fox, 20 Conn.App. 619, 569 A.2d 1137, cert. denied, 215 Conn. 808, 569 A.2d 1137 (1990), stands for the proposition that " [ § ]52-556 does not permit an action against the state to recover for damages sustained when a motorist collide[s] with a state truck which is being used as a warning signal ..." Defendant's Memorandum of Law in Support of Motion to Dismiss, 3. The defendant therefore seeks dismissal of the plaintiffs' complaint on the ground of sovereign immunity.
DISCUSSION
I.
The defendant is correct that in Rivera v. Fox, supra, 20 Conn.App. at 619, the court found that a parked truck was not being operated within the meaning of § 52-556. Significantly, however, the truck in that case had been parked in one location for nearly two hours and " both parties agree[d] that at the time of the collision the DOT truck was being used as a warning signal ... [and] was not parked incident to travel." Id., at 624. In light of the parties' express agreement as to those crucial facts, the Appellate Court upheld the trial court's granting of summary judgment in favor of the state.
Rivera must be read, however, in conjunction with the Appellate Court's later holding in Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004), as well as with the Supreme Court's subsequent decision in that same case, Allison v. Manetta, 284 Conn. 389, 933 A.2d 1197 (2007). As in Rivera, the state truck in Allison was parked when the accident in question occurred. For that specific reason, the trial court in Allison, relying on Rivera, concluded that the truck was not being operated within the meaning of § 52-556. Allison v. Manetta, supra, 84 Conn.App. at 538. The trial court therefore granted the state's motion to dismiss on the ground of sovereign immunity. Id.
In reversing that dismissal, the Appellate Court examined the purpose for which the truck was in use on the highway and the circumstances that led the truck to be parked thereon. On the basis of that examination, the court held that the state truck, though parked for a period of minutes, in fact was being operated within the meaning of the statute. In reaching that conclusion, the court distinguished Rivera and found that the truck in Allison was being operated as required by § 52-556 because it had been " parked [by the state employee] as an activity incident to moving it from one place to another along his designated maintenance route to fulfill his responsibilities for the department [of transportation]." Allison v. Manetta, supra, 84 Conn.App. at 542. The Supreme Court later adopted this reasoning in the course of its review of the sufficiency of the jury instructions given at the trial of this case. Allison v. Manetta, supra, 284 Conn. at 402.
In light of these holdings, and contrary to the position advanced by the defendant in its memorandum of law, the issue of whether the truck in the present matter was being operated as required by § 52-556 cannot be resolved on the basis of Astarita's representations that the truck was not moving at the time of the collision and had been parked as a warning to traffic. As to the fact that the truck was not moving, there can be no doubt after Allison v. Manetta that even a stationary vehicle, including one that had not moved for a number of minutes, may satisfy the " operation" requirement contained within § 52-556. As to Astarita's statement as to why he claims to have parked the truck, his wholly subjective (and from the defendant's viewpoint, self-serving) characterization of his purpose is largely irrelevant. Unlike the plaintiff in Rivera v. Fox, supra, 20 Conn.App. at 624, the plaintiffs here have not conceded that the truck was being used as a warning device. As a result, the determination as to whether the truck was being used in such a manner will remain " a question of fact for the jury"; Allison v. Manetta, supra, 284 Conn. at 402 n.10; to be resolved based upon the evidence presented at trial regarding the nature of Astarita's work responsibilities and the extent to which his parking of the truck can be viewed as " an activity incident to moving it from one place to another ... to fulfill [those] responsibilities." Allison v. Manetta, supra, 84 Conn.App. at 542. In sum, Astarita's affidavit, without more, simply does not provide the court with sufficient information to answer the critical question of whether the truck was parked incident to travel, and thus being operated within the meaning of § 52-556, or parked as a warning device, and thus not being operated within that statute's meaning.
The truck in Allison v. Manetta had been stationary for approximately four minutes prior to being struck. Allison v. Manetta, supra, 84 Conn.App. at 541. In the present case, Astarita's affidavit states only that the truck had been stopped " a few minutes prior to the accident"; ¶ 8; and was not moving at the time of the collision. ¶ 10. From the precise wording of these statements, it is not clear whether the truck had been stopped for a few minutes at the location at which the collision occurred, or whether the truck had been stopped for a few minutes at one location and then had been moved to, or was in the process of being moved to, a different location at the time the collision occurred. In this regard, it is worth noting that the plaintiffs' complaint alleges that " the defendant's truck stopped without warning ... causing the few cars in front of the plaintiff [Sanders] to suddenly veer to the right and plaintiff's vehicle to then collide into the back of the truck." Plaintiffs' Complaint, First and Second Count, ¶ 4. This apparent factual dispute is not insignificant when considered within the context of the issues raised by the present motion.
There may be reason to believe that Astarita was accompanying a moving work crew and that his responsibilities over the course of the day in question involved stopping his truck for a short period in one location, then moving it and stopping it again in a more northerly location, as the workers ahead of him completed their work in one area and moved on to the next. Such a conclusion finds support in the precise wording of the Astarita affidavit; see note 3 of this decision; and in the defendant's memorandum of law which specifically argues that " [e]ven when a DOT truck is part of a mobile warning system, if it is stopped at the time of accident, it is not thought of as being operated." Defendant's Memorandum of Law, 5.
Because the matter of operation under § 52-556 cannot be determined on the basis of the current record and the jurisdictional issue presented by the defendant's motion to dismiss rises or falls on the applicability of § 52-556, the defendant's motion to dismiss cannot be adjudicated at this time. Of course, the court is mindful of its obligation to resolve matters of subject matter jurisdiction when raised, and recognizes that the defendant's claim of sovereign immunity, if meritorious, deprives this court of such jurisdiction. Nevertheless, as our Supreme Court noted in Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009), " where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." In the court's view, that is precisely the situation that exists here. This is a case in which " the jurisdictional facts are [so] intertwined with the merits of the case, " that it is appropriate to " postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Id., at 653 n.16. Accordingly, because the challenge to subject matter jurisdiction raised by the defendant's motion to dismiss is based on facts that have not been established, this court, pursuant to Conboy, " decline[s] to address the state's jurisdictional argument" and hereby " den[ies] the state's motion to dismiss." Id., at 656.
II.
Although the above discussion provides the formal legal basis upon which the defendant's motion to dismiss has been denied, the court feels compelled to comment on an aspect of the procedural history of the present action, and to raise questions regarding the fundamental fairness, if not the legal consequences, of the tactics employed by the defendant in its effort to defend against the plaintiffs' claims. The present action is not the first procedural vehicle the plaintiff, Ashley Sanders, has attempted to utilize as a means by which to seek compensation for the injuries she allegedly suffered in the collision on October 19, 2009. After the accident, and after the plaintiff, through counsel, took steps to preserve her statutory rights against the state, the state's insurer notified the plaintiff that coverage for her claim had been denied. In setting forth the reasons for its denial of the claim, the state's insurer indicated, in pertinent part, that " [t]he DOT truck was being used as a beacon and not being operated as a motor vehicle, " and that " [t]here is no coverage as an auto accident per 52-556." Plaintiff's Objection, Exhibit 2 (Claimant's Response to Respondent's Motion to Dismiss and Exhibit A attached thereto).
The court's comments and questions are not being raised sua sponte — they are the subject of the plaintiffs' objection to defendant's motion to dismiss, dated August 9, 2012, and responded to in the defendant's reply, dated August 10, 2012.
Rhonda Velez, the co-plaintiff in the present action, does not appear to have been involved in these earlier proceedings. As used hereinafter, the " plaintiff" therefore refers to Ashley Sanders.
In response to the determination of the state's insurer, the plaintiff filed a notice of claim (File No. 22379) with the office of the claims commissioner (commission) seeking permission to sue the state for the injuries she suffered in the accident. The state, there represented by the office of the attorney general, moved to dismiss that claim, asserting that the " Claims Commissioner [was] without jurisdiction to hear this matter as suit is ‘ otherwise authorized at law’ pursuant to Conn. Gen.Stat. § 4-142(2)." Plaintiff's Objection, Exhibit 1 (Respondent, Commissioner of Transportation's Motion to Dismiss). More specifically, the state maintained that the plaintiff's claim should be dismissed because " the Claimant has a direct action against the [State] pursuant to Conn. Gen.Stat. § 52-556." Id.
General Statutes § 4-142(2) provides that the jurisdiction of the commission does not include " claims upon which suit is otherwise authorized by law including suits to recover similar relief arising from the same set of facts."
The plaintiff filed a response to the state's motion to dismiss, in which she noted her " agree[ment] with the statements of law as set forth in the brief of the State, " relating to her right to pursue an action under § 52-556. Plaintiff's Objection, Exhibit 2 (Claimant's Response to Respondent's Motion to Dismiss). Notwithstanding that agreement, however, the plaintiff noted the contrary position taken by the state's insurer, and argued that her claim should not be dismissed " as there is a question as to whether the State vehicle was being operated within the meaning of Connecticut General Statutes Sect. 52-556." Id.
Upon consideration of the issue, the commission dismissed the plaintiff's claim. In doing so, the commission adopted the position advocated by the state and held that the plaintiff's claim " alleges damages for injuries sustained through the negligence of a state employee operating a motor vehicle owned by the state, " and therefore " may be filed in Superior Court under the waiver of sovereign immunity as set forth in § 52-556 of the Conn. General Statutes." Plaintiff's Objection, Exhibit 3 (Office of the Claims Commissioner, Dismissal of Claim).
Within months of that dismissal, the plaintiff, joined by Rhonda Velez, commenced the present § 52-556 action— the very action that the defendant had advocated, and the commission had found, was available at law. But in response to this action, the defendant has filed yet another motion to dismiss, this time contending that a § 52-556 action is not available to the plaintiffs and that their complaint must be dismissed for lack of subject matter jurisdiction. Specifically, having been successful in persuading the commission in a motion to dismiss filed there that the truck in question was being operated within the meaning of § 52-556, the state, seemingly without any sense of fidelity to its earlier legal representations, now has wholly jettisoned that stance in favor of one diametrically opposed to it— arguing in the present motion to dismiss that, in fact, the truck was not being operated at the time of the collision and that § 52-556 therefore does not afford the plaintiffs a remedy.
The defendant's tactical decision to adopt in this court a position contrary to that it earlier asserted before the commission triggers questions as to the potential applicability of the legal doctrines relating to judicial admissions and judicial estoppel. In their objection to the defendant's present motion to dismiss, the plaintiffs, without referring to these doctrines by name, contend that " the State speaks and is bound by the words and actions of the Attorney General, " and thus " may not move for dismissal of a Claims Commission filing, and after winning, turn around and assert that the proper forum was the Claims Commission." Plaintiff's Objection, 2. In its response, the defendant addresses the plaintiffs' claim within the context of the law regarding judicial admissions and points out that judicial admissions are limited to concessions of fact by a party or its counsel. Defendant's Reply, 2. The defendant maintains that the attorney general's statement that " [the] claimant's allegations state a cause of action against the State under C.G.S. § 52-556" contained within the motion to dismiss filed before the commission, is not a factual allegation and certainly not the sort of concession of fact that might constitute a judicial admission." Defendant's Reply, 2.
The state's assertion that the attorney general's prior statement " certainly" does not constitute a judicial admission may well be misinformed. Viewed within the context of the other representations contained in the motion to dismiss, the attorney general's statement appears to reflect a factual concession by the state that its employee was " operating" a state vehicle at the time of the accident at issue within the meaning of § 52-556. In specifically identifying his legal position for the benefit of the commission, the attorney general stated that " the Claimant's allegations state a cause of action against the State under Conn. Gen.Stat. § 52-556, which waives the State's sovereign immunity for injury or damages sustained through the negligence of any State official or employee when operating a state owned or insured vehicle. " (Emphasis added.) Plaintiff's Objection, Exhibit 1 (Respondent, Commissioner of Transportation's Memorandum of Law in Support of His Motion to Dismiss, 1.) Indeed, later in his motion, the attorney general went so far as to state that the " Claimant alleges facts sufficient to invoke the [§ 52-556] waiver of immunity." Id., at 4. Given these unambiguous representations (not to mention the commission's and plaintiffs' reliance upon them), the state's assertion now that they were mere " arguments, and not [judicial] admissions"; Defendant's Reply, 1; is puzzling in the view of the court and, in all likelihood, disingenuous in the view of the plaintiffs.
Moreover, the defendant's current effort to advocate a position contrary to the one it earlier advanced appears to run afoul of, and be procedurally barred by, the doctrine of judicial estoppel. In Association Resources, Inc. v. Wall, 298 Conn. 145, 169-70, 2 A.3d 873 (2010), our Supreme Court recognized that " [j]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ... The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings ... Typically, judicial estoppel will apply if: (1) a party's later position is clearly inconsistent with its earlier position; (2) the party's former position has been adopted in some way by the court in the earlier proceedings; and (3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel." (Citations omitted; internal quotation marks omitted.) Quoting from the United States Supreme Court decision in New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001), our court stressed that the rule of judicial estoppel " is intended to prevent improper use of judicial machinery, " and to prohibit " parties from deliberately changing positions according to the exigencies of the moment." (Internal quotation marks omitted.) Association Resources, Inc. v. Wall, supra, at 170-71.
Our Supreme Court recently applied judicial estoppel in the family law setting to prevent a party from seeking to invalidate, as against public policy, a provision of the stipulated agreement that was incorporated into the judgment of dissolution. Dougan v. Dougan, 301 Conn. 361, 21 A.3d 791 (2011). The court held that the application of judicial estoppel was warranted given that the party had knowingly agreed to the particular provision in question and had described it as fair and equitable during the course of testimony at the time of the entry of the judgment.
Given the requirements and purpose of the doctrine of judicial estoppel, it cannot seriously be disputed that the spirit, if not the letter, of this doctrine has been violated by the state in its defense of the claim raised by the plaintiffs here. By arguing now that the plaintiffs' complaint must be dismissed because the truck at issue was not being operated within the meaning of § 52-556, the state has taken a position " clearly inconsistent with its earlier position" before the commission. Furthermore, there is no doubt that the state's former position " was adopted in some way" in the earlier proceedings; in fact, in dismissing the plaintiff's claim there, the commission could be said to have adopted the state's position in every way. Finally, by advocating a contrary position in this court, the state clearly is attempting to " derive an unfair advantage" over the plaintiffs because, if this court were to adopt the state's new position and dismiss the plaintiffs' present action, the plaintiffs presumably would have no choice but to return to the commission— doing so without any assurance that the state, likely acting there through the attorney general, would not again seek dismissal of that claim either by reasserting its earlier position that § 52-556 provides the plaintiffs a remedy at law, or by relying on principles of res judicata or collateral estoppel.
The court, in candor, must express some uncertainty as to whether judicial estoppel may be asserted to prevent a party from challenging a court's subject matter jurisdiction. Undoubtably, there exists an inherent tension between these two important principles. But the fact that the state's tactics may not be expressly prohibited by law does not mitigate their potential unfairness. For the state to " deliberately chang[e] positions according to the exigencies of the moment"; Association Resources, Inc. v. Wall, supra, 298 Conn. at 170; undermines not only the integrity of the judicial process itself, but also the confidence that litigants can be expected to have in that process.
The Court of Appeals of the Second Circuit recently commented on the interplay between judicial estoppel and subject matter jurisdiction, noting that " [o]ur Court has observed that [a]s an equitable doctrine, judicial estoppel does not rest easily with the concept of standing, ... a prerequisite to federal subject matter jurisdiction, and we have noted that a leading treatise caution[s] that special care should be taken in considering whether judicial estoppel should even apply to matters affecting federal subject matter jurisdiction." (Internal quotation marks omitted.) Intellivision v. Microsoft Corp., United States Court of Appeals, Docket No. 111657 CV (2d. Cir. June 11, 2012). Importantly, however, the Second Circuit was then quick to point out that " [w]e have never held, however, that judicial estoppel can never apply to matters affecting subject matter jurisdiction." Id.
Finally it is important to note that the plaintiffs here are not the first parties to have fallen victim to this type of tactical flip-flop by the state in the course of § 52-556 litigation, nor is this court the first to have found such tactics troubling. In DePietro v. Dept. of Public Safety, 126 Conn.App. 414, 11 A.3d 1149 (2011), the plaintiff, a police officer, was injured while operating his police vehicle in a collision caused by the driver of a private vehicle. The plaintiff there commenced an action against the state in the Superior Court, and while that was pending, also filed a claim with the commission. Both actions, upon motions filed by the state, were ultimately dismissed.
On appeal of the dismissal of the plaintiff's court action, the Appellate Court took note of the contrary positions that had been advocated by the state before the commission, on the one hand, and before the trial court, on the other. " In its ... motion to dismiss the plaintiff's claim before the commissioner, the defendant maintained that ‘ § 52-556 provides a direct cause of action against the state to recover damages for injuries caused by motor vehicles owned by the state. Therefore, the commissioner lacks subject matter jurisdiction to hear this claim because a direct cause of action is authorized by § 52-556 and the [plaintiff's] claim is excepted by the provisions of General Statutes § 4-142(2).’ The defendant subsequently represented to the trial court, in urging it to dismiss the present action, that § 52-556 was inapplicable to the plaintiff's claim." DePietro v. Dept. of Public Safety, supra, 126 Conn.App. at 419 n.2. Pointing out that our Supreme Court had recently recognized the doctrine of judicial estoppel, the Appellate Court identified the requirements of that doctrine and, though choosing not to address the applicability of doctrine in the case before it, stated that " [t]he defendant's inconsistent representations to the commission and the trial court are troubling nonetheless." Id.
The court's ability in that case to determine the potential applicability of the doctrine of judicial estoppel was hampered by the fact that, unlike in the present case, the record did not contain the commission's ruling and did not indicate " why or how the commissioner acted on the plaintiff's claim." DePietro v. Dept. of Public Safety, supra, 126 Conn.App. at 417. The absence of the commission's decision in that case was particularly significant because the state had presented several different legal theories in support of its motion to dismiss. Id., at 433 n.8 (Dupont, J., dissenting). Thus, in DePietro, the record was unclear as to whether the defendant's former position regarding § 52-556 actually had been adopted in the earlier proceedings, as required for the application of judicial estoppel. Consideration of the issue of judicial estoppel in the present matter is not similarly compromised in that (1) in moving to dismiss before the commission, the defendant's only legal argument was that § 52-556 provided the plaintiffs a remedy at law, and (2) the commission's decision is part of the record and expressly adopts the state's position.
Needless to say, this court echoes the concern expressed by the Appellate Court. In pursuing their right to seek redress for their injuries and damages, the plaintiffs have been met with contradictory factual and legal assertions made by and on behalf of the defendant-first, by its insurer, then by its attorney general, and now by its outside counsel. As a result, the plaintiffs have been and, in the defendant's view, should continue to be, ping-ponged from one forum to another. While the substantive fairness of these tactics, as discussed herein, is of great concern to this court, their legal impact need not be decided here. As explained in Part I of this decision and in accordance with Conboy v. State, supra, 292 Conn. at 642, the present motion to dismiss must be denied because the subject matter jurisdiction challenge raised therein is based on facts that, in the court's view, have not been adequately established. Consequently, this court need not determine whether the defendant, given its earlier stated position before the commission, should be barred now from advancing the claim that its truck was not being operated within the meaning of § 52-556. The resolution of that issue, and the extent to which the doctrines of judicial admissions and judicial estoppel may inform it, is left to those courts before whom this action may later come and these questions arise.
In applying judicial estoppel in
CONCLUSION
For the reasons above stated, the defendant's motion to dismiss is hereby denied.
As to the defendant's contention regarding so-called mobile warning systems, the court feels constrained to point out its disagreement. In the court's opinion, trucks that repeatedly stop and go in a mobile warning system are being parked incident to travel and therefore do not automatically cease their operation (for purposes of § 52-556) at the moment their movement ceases. In support of its contrary view, the defendant cites only to Pasqua v.. Purvis, Superior Court, judicial district of Stamford, Docket No. CV 89 0097954 (March 21, 1995, Dean, J.) [ 14 Conn. L. Rptr. 5]. That case, which relied upon Rivera v. Fox, supra, 20 Conn.App. at 619, was decided before Allison v. Manetta, supra, 84 Conn.App. at 535, and thus did not have the benefit of the reasoning contained in the Appellate Court's later opinion. Indeed, given Allison's emphasis on whether parking is incident to travel, Pasqua's holding that a truck in a mobile warning system, while parked, is not being operated for purposes of § 52-556, would seem to fly in the face of that court's express recognition that " travel may be an inherent part of a mobile warning system ..." Pasqua v. Purvis, supra, Docket No. CV 89 0097954. In any event, the court here does not agree with the defendant's analysis of this issue or its reliance upon this pre- Allison Superior Court decision.
At least one Superior Court has applied the doctrine of judicial estoppel to the issue of standing and subject matter jurisdiction. In Price v. John Hancock Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV10-6016333 (May 16, 2011, Robaina, J.), the parties had been involved in a prior action during which the defendant asserted that the plaintiffs were entitled to bring an action seeking a declaratory judgment. The court in the earlier proceedings had agreed with the defendant's position and the plaintiffs thereafter commenced such a declaratory action. The defendant then moved to dismiss, claiming that the court lacked subject matter jurisdiction because the plaintiffs did not have standing to bring an action for declaratory relief. On the basis of the contrary position taken by the defendant in the earlier proceedings and because " [a]ll of the elements necessary for judicial estoppel ... [were] met, " the court denied the motion to dismiss and concluded that the defendant was " judicially estopped from contesting the plaintiffs' standing." Id. Although arising in a different factual setting, Price v. John Hancock Ins. Co. therefore addresses the very issue presented in the instant case— whether a defendant, after initially contending that a plaintiff has the right to pursue a particular remedy, may adopt a contrary position after that remedy is sought and challenge the plaintiff's standing to bring the action and the court's jurisdiction to entertain it.
Dougan v. Dougan, supra, 301 Conn. at 361; see note 9 of this decision; our Supreme Court voiced similar concerns, calling it " disconcerting" and " unseemly" that an attorney would advocate a position contrary to that he earlier had asserted in related proceedings in the same case. Id., at 373, n.14, quoting, Dougan v. Dougan, 114 Conn.App. 379, 395 n.5, 970 A.2d 131 (2009) (Borden, J. concurring). Although the contrary representations in the present matter are not attributable to the same counsel, the defendant's willingness to advance contradictory legal theories is no less disconcerting and unseemly.