Opinion
No. CV 04 040526996
October 27, 2005
MEMORANDUM OF DECISION, RE MOTION #112 MOTION TO DISMISS
Facts
The Plaintiff State Farm Insurance Companies (hereinafter "State Farm") alleges in its second amended complaint that it is the subrogee of the Plaintiff Stacy Holloway (hereinafter "Holloway"). State Farm further alleges that on or about September 14, 2003, it insured a vehicle owned by Holloway. On that date Holloway was operating her vehicle on the Silas Deane Highway in Rocky Hill, Connecticut when the vehicle struck a raised manhole cover.
On January 25, 2005 the Defendant filed a motion to dismiss the complaint in its entirety. The Defendant asserts that its motion should be granted for reason that the Plaintiffs' notice to the State was insufficient. The Defendant additionally asserts that State Farm Insurance Companies' subrogation claim is barred by the doctrine of sovereign immunity.
Discussion
The instant action was brought pursuant to § 13a-144 C.G.S., the highway defect statute. This statute provides in pertinent part that:
Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner . . .
(Emphasis added)
The Defendant asserts that the Plaintiffs' notice to the State of Connecticut was insufficient. It is well settled law that "[Section] 13a-144 created a new cause of action not authorized at common law, in derogation of sovereign immunity. The notice requirement contained in § 13a-144 is a condition precedent which, if not met, will prevent the destruction of sovereign immunity." Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).
"The notice [mandated under § 13a-144] is to be tested with reference to the purpose for which it is required." Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). "The [notice] requirement . . . was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made . . . The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit . . . [In other words] [t]he purpose of the requirement of notice is to furnish the [commissioner] such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection . . . Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." (Citations omitted; internal quotation marks omitted.) Lussier v. Dept. of Transportation, supra, 228 Conn. 354.
Filippi v. Sullivan, 273 Conn. 1, 9 (2005).
The notice in the instant action provides in pertinent part as follows:
1. My name is State Farm Insurance and Casualty Company . . .
2. The claim is one against Connecticut Department of Transportation for damages sustained by a 2001 Mitsubishi Eclipse, owned by Stacy Holloway.
3. The time this claim arose and damages hereinafter alleged were sustained at approximately 9:45 AM on September 14, 2003.
4. The particular place of sustaining of such damages was on Silas Deane Highway-Route 99.
5. The said damages for which claim is hereby made arose in the following way:
TO WIT: Ms. Holloway's vehicle sustained damage from an elevated manhole cover.
The Plaintiff Holloway Neither Recited nor Attached the Notice to the Complaint
The Defendant first asserts that the individual Plaintiffs' claims should be dismissed in their entirety for reason that the aforementioned notice was neither recited nor attached to the complaint.
Section 10-68 of the Connecticut Practice Book concerns "pleading special matters." This section provides that:
Whenever in an action of tort or upon a statute the Plaintiff is compelled to allege the giving of a notice required by statute, the Plaintiff shall either recite the same in the complaint or annex a copy thereto.
The Defendant seeks a dismissal of the Plaintiffs' action for their failure to comply with the aforementioned provisions; this Court however does not believe that dismissal is the appropriate remedy. "The motion to dismiss is governed by Practice Book "10-30 through 10-34. Properly granted on jurisdictional grounds, it essentially asserts that, as a matter of law and fact, a Plaintiff cannot state a cause of action that is properly before the court . . . By contrast, the motion to strike attacks the sufficiency of the pleadings." (Citations omitted.) Egri v. Foisie, 83 Conn.App. 243, 247, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004).
This Court finds that this particular issue that was raised by the Defendant could have been appropriately raised in a Motion to Strike. However, the Court also finds that the Defendant has waived its right to file said pleading. "Practice Book § 112 [now § 10-6] dictates the order of pleadings in a civil case. A motion to strike a complaint must precede the defendant's answer to that complaint. Pursuant to Practice Book § 113 [now § 10-7], `the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.' " Wilson v. Hryniewicz, supra, 38 Conn.App. 718. Hryniewicz v. Wilson, 51 Conn.App. 440 (1999).
Sufficiency of the Notice
The Defendant asserts that the corporate Plaintiff's case should be dismissed for reason that the notice fails to specifically and with details apprise the Defendant of the location of the incident and the claimed injury.
"It is well established . . . that the state is immune from suit unless it consents to be sued by . . . waiving sovereign immunity . . ." (Internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992). Section 13a-144 creates such a waiver and provides in relevant part: "No . . . action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner" (Emphasis added.) In our opinion, the statutory phrase, " place of its occurrence," refers to the prior phrase, "such injury," and therefore, it is the place of injury that must be described in the notice required by statute.
This statute provides a limited waiver of sovereign immunity and, as a break from common law, is to be strictly construed. Lussier v. Dept. of Transportation, 228 Conn. 343, 349, 636 A.2d 808 (1994). A highway defect claim varies from a common-law negligence case. The Plaintiff is required by statute to give the commissioner written notice of the time, place of injury, defect and description of the injuries incurred so as to furnish the commissioner with sufficient information to permit him to make a timely investigation of the facts. Id., 357.
Filippi v. Sullivan, 78 Conn.App. 796, 800 (2003).
The notice of claim in the instant action provides in pertinent part that the location of the loss was "Rocky Hill." The notice further provides that:
4. The particular place of the sustaining of such damages was on Silas Deane Highway-Route 99.
5. Ms. Holloway's vehicle sustained damages from an elevated manhole cover.
See the attachment to the Second Amended Complaint.
"Ordinarily, the question of the adequacy of notice is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case." Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice "patently meets or fails to meet"; Id.; the statutory requirements. Zotta v. Burns, 8 Conn.App. 169, 173 (1986).
There are two categories of cases in which the written notice is patently defective because of a problem with the description of the place of injury. The first category consists of situations where a court has found that the notice stated a location different from the place of actual injury. See Serrano v. Burns, 70 Conn.App. 21, 26-27, 796 A.2d 1258, cert. denied, 261 Conn. 932, 806 A.2d 1066 (2002); see also Ozmun v. Burns, 18 Conn.App. 677, 679 n. 3, 680-81, 559 A.2d 1143 (1989) (notice describing location using "north" in place of "south" and "east" in place of "west"); Zotta v. Burns, supra, 8 Conn.App. 170 (location identified as "route 6 in Bolton" and accident occurred on "Camp Meeting Road in Bolton"). The second category consists of situations where the "description is so vague in its breadth that the Defendant could not be reasonably expected to make a timely investigation based on the information provided." Serrano v. Burns, supra, 27; see also Bresnan v. Frankel, supra, 224 Conn. 25-26 (location identified as "Route 14A, Plainfield, Connecticut," without any further detail and where Route 14A was six-mile stretch of road); Schaap v. Meriden, 139 Conn. 254, 256, 93 A.2d 152 (1952) (location identified as "near the edge of a manhole cover" without identifying particular one of numerous manhole covers); Murray v. Commissioner of Transportation, 31 Conn.App. 752, 753, 626 A.2d 1328 (1993) (location identified simply as "the northern curbline of Route 22," a public highway running through North Haven).
The issue before this Court is whether the notice in this action falls within the second category of defective notices, i.e., whether the description is so vague in its breadth that the Defendant could not be reasonably expected to make a timely investigation based on the information provided.
The Defendant asserts that the subject notice is inadequate in that the place that the alleged damages were sustained was "on Silas Deane Highway-Route 99." The Defendant further asserts that the notice "identifies a roadway over ten miles in length." The Plaintiff on the other hand asserts that the Silas Deane Highway in Rocky Hill "is not a 10 mile stretch of highway as the Defendant contends in their motion to dismiss but approximately a 2 mile stretch of roadway."
See Plaintiffs' Memorandum of Law in Opposition of Defendant's Motion to Dismiss at page 6.
Whereas the Plaintiffs have admitted in their opposition pleading that the Silas Deane Highway in Rocky Hill, CT is at least approximately two miles in length, the notice is patently defective for reason that it merely indicates that the incident occurred at a raised but otherwise unidentified manhole on a stretch of highway that runs somewhere between two and ten miles through the Town of Rocky Hill.
The notice in this matter is similar to the notice that was the subject of Schaap v. Meriden, Id. As was the situation in Schaap, the notice here is so vague that the Defendant could not be reasonably expected to make a timely investigation based on the information provided by the Plaintiffs.
For all of the foregoing reasons, the Motion to Dismiss is granted. So ordered.