Opinion
CV176012350S
01-29-2018
Rebecca EDELMAN v. Timothy O’DONNELL et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
In this negligence case against several towns, school officials, and Regional School District 19 (District 19) the defendants move to strike counts three and five of the plaintiff’s revised complaint, which assert direct claims against District 19 and the towns based on General Statutes § § 10-235 and 7-101a respectively. The defendants maintain these counts are legally insufficient because neither statute provides the plaintiff with a direct cause of action against a board of education or municipality. For the reasons discussed below, the court agrees with the defendants and grants the motion to strike as to both counts.
FACTS
On May 8, 2017, the plaintiff, Rebecca Edelman, filed this negligence action against the defendants, Timothy O’Donnell, District 19, the towns of Ashford, Mansfield, and Willington, Bruce Silva, Louis DeLoreto, Stephen Robichaud, and Anthony DeNicola. On July 10, 2017, the plaintiff filed the operative five-count revised complaint, which arises out of an alleged collision of a " Sea Doo jet boat" (jet ski) and a high school crew team on Coventry Lake. The revised complaint alleges the following facts common to the relevant counts. The plaintiff was a student at the Edwin O. Smith High School (E.O. Smith) and a member of its crew team. District 19 is a regional school district serving the municipalities of Ashford, Mansfield, and Willington and is charged with the oversight and control of the operations of E.O. Smith. Silva was the superintended of schools for District 19. DeLoreto was the principal at E.O. Smith, Robichaud the athletic director, and DeNicola the head crew coach. The defendants, with the exception of O’Donnell, were responsible for the administration and supervision of students, coaches, and staff participating in E.O. Smith athletic programs, including the crew team. On or about May 3, 2015, the plaintiff was an occupant of a crew shell and participating in an E.O. Smith crew team practice on Coventry Lake. During that practice, a jet ski operated by O’Donnell struck the crew shell, causing the plaintiff to suffer personal injuries.
On November 16, 2017, the plaintiff withdrew her cause of action against O’Donnell.
Ashford, Mansfield, and Willington are hereinafter referred to as " the towns."
Based upon these factual allegations, the plaintiff asserts a number of statutory and common-law negligence claims against the individual defendants, Silva, DeLoreto, Robichaud, and DeNicola, as well as parallel claims of vicarious and statutory liability against District 19 and the towns. Count one alleges that the plaintiff’s injuries were caused by O’Donnell’s negligent operation of the jet ski. Count two alleges that the plaintiff’s injuries were caused by the negligence of District 19 acting by and through the individual defendants. Count three substantially incorporates the negligence allegations from count two and further alleges that pursuant to § 10-235, District 19 " is responsible for the indemnification of its agents, apparent agents, servants, coaches, assistant coaches, administration, staff, and/or employees," including the individual defendants. Count four alleges that the plaintiff’s injuries were caused by the negligence of the towns acting by and through the individual defendants. Count five substantially incorporates the negligence allegations from count four and alleges that pursuant to § 7-101a, the towns are " legally obligated to indemnify and hold harmless" the individual defendants " from financial losses arising from the fourth count."
Silva, DeLoreto, Robichaud, and DeNicola are hereinafter referred to as " the individual defendants."
General Statutes § 10-235 provides in provides in relevant part: " (a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff ... from financial loss and expense ... arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person ... provided such teacher, member or employee, at the time of the act resulting in such injury ... was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education ..."
General Statutes § 7-101a provides in relevant part: " (a) Each municipality shall protect and save harmless any municipal officer ... of any board, committee, council, agency or commission ... or any municipal employee, of such municipality from financial loss and expense ... arising out of any claim, demand, suit or judgment by reason of alleged negligence ... on the part of such officer or such employee while acting in the discharge of his duties ..."
On July 17, 2017, the defendants filed the present motion to strike counts three and five, brought pursuant to § § 10-235 and 7-101a respectively, on the ground that both counts are legally insufficient because neither statute provides for a direct right of action on behalf of the plaintiff. The defendants support their motion with a memorandum of law. On August 15, 2017, the plaintiff filed an objection to the defendants’ motion to strike with a memorandum of law in support of the objection. The court heard oral argument on October 16, 2017.
All of the defendants, with the exception of O’Donnell, filed the present motion to strike; thus, any subsequent reference to " the defendants" excludes O’Donnell. See footnote 1 of this opinion.
DISCUSSION
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Practice Book § 10-39(a). " [A] motion to strike ... requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
I
COUNT THREE: INDEMNIFICATION PURSUANT TO § 10-235
The sole issue raised by the motion to strike the third count is whether an injured party may bring a direct action against a board of education pursuant to § 10-235. The parties acknowledge there is an absence of direct appellate authority on that question and that the decisions of Superior Court judges are in conflict. A majority of Superior Court decisions, however, hold that § 10-235 does not create a direct cause of action. The plaintiff contends that the court should adopt the minority view and hold that a direct claim under § 10-235 is a cognizable cause of action, derivative of the negligence claims against individual employees.
Section 10-235 provides in relevant part: " (a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff ... from financial loss and expense ... arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person ... provided such teacher, member or employee, at the time of the act resulting in such injury ... was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education ..." The language of this statute only addresses the relationship between an individual employee and the board of education; it is silent as to the relationship between the injured party and the board of education. The " protect and save harmless" language is " indicative of a legislative intent to impose a duty of indemnification." Vibert v. Board of Education, 260 Conn. 167, 173-74, 793 A.2d 1076 (2002); see King v. Board of Education, 195 Conn. 90, 97, 486 A.2d 1111 (1985) (by enacting § 10-235 " the legislature intended to make indemnification available to a board of education employee for losses sustained from claims or suits for damages" ). Moreover, the protection afforded by the statute is from " loss," not liability. Logan v. New Haven, 49 Conn.Supp. 261, 264, 873 A.2d 275 (2005). The right to indemnification is " contingent on a judgment’s being obtained against a board member, teacher, employee or any member of the board’s ... staff." Burns v. Board of Education, 30 Conn.App. 594, 602, 621 A.2d 1350 (1993), rev’d on other grounds, 228 Conn. 640, 638 A.2d 1 (1994). Unless and until the employee, as opposed to an injured third party, sustains a loss, no right of action arises under the statute. Swainbank v. Coombs, 19 Conn.Supp. 391, 396, 115 A.2d 468 (1955). " Section 10-235 is not intended to benefit prospective plaintiffs; it is a statutorily created right of indemnification for the benefit of teachers and other board employees ... Its purpose is to make indemnification available to a board of education employee for losses sustained from claims or suits ... resulting from any act of the employee performed in the discharge of his or her duties ... [It] does not give plaintiffs a direct cause of action." (Citations omitted; internal quotation marks omitted.) Walsh v. Board of Education, Superior Court, judicial district of Waterbury, Docket No. CV-98-0149790-S (November 7, 2000, Wiese, J.). A majority of Superior Court decisions support this view.
See e.g., Jurgilewicz v. Sita, Superior Court, judicial district of New Haven, Docket No. CV-13-6036859-S (December 20, 2013, Wilson, J.) (collecting cases in the majority); Barnum v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-5000225 (October 29, 2007, Esposito, J.); Duffus v: McClendon, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-01-0182286-S (April 12, 2001, Karazin, J.) (29 Conn.L.Rptr. 536); Brown v. Acorn Acres, Inc., Superior Court, judicial district of New London, Docket No. 117980 (August 23, 2000, Martin, J.) (28 Conn.L.Rptr. 24).
The plaintiff relies upon four Superior Court decisions to argue that she has properly alleged a cause of action pursuant to § 10-235, asserting a derivative negligence claim based upon the allegations of negligence against the individual defendants. See Costa v. Board of Education, Superior Court, judicial district of New Britain, Docket No. CV-13-6021448-S (August 14, 2014, Shortall, J.T.R.); Seibold v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV-98-0078042 (January 6, 2000, Frazzini, J.) (26 Conn.L.Rptr. 610); DeLeon v. Board of Education, Superior Court, judicial district of Hartford, Docket No. 96-0566449 (April 15, 1997, Wagner, J.) (19 Conn.L.Rptr. 345); Rosen v. Reale, Superior Court, judicial district of New London, Docket No. 527510 (January 12, 1994, Hurley, J.).
Seibold did not determine whether § 10-235 provided a direct cause of action; rather, it merely held that the defendants were entitled to summary judgment because the plaintiff did not sue any employees of the board in their individual capacities. DeLeon just characterizes the claim under § 10-235 as " derivative" without analysis.
Both Costa and Rosen rely upon a reading of Burns v. Board of Education, supra, 30 Conn.App. 602, that this court finds unpersuasive. In Burns, the Appellate Court upheld summary judgment in favor of individual municipal defendants based on governmental immunity. The plaintiff had also asserted claims against the city of Stamford and its board of education under General Statutes § § 7-465 and 10-235 and the court upheld summary judgment in favor of both defendants on the grounds that both statutes are " indemnification statutes contingent on a judgment’s being obtained against [an employee]." Id., 602. Costa and Rosen both appear to infer from the equivalent manner in which the court disposed of the claims under both statutes in Burns that § 10-235 operates in the same way that § 7-465 operates. Burns, however, did not reach the issue of whether § 10-235 creates a direct cause of action, presumably because the immunity of the individual defendants rendered that inquiry immaterial. To the contrary, Burns " establishes nothing more than the principle that a board of education is not liable under § 10-235 unless an individual employee is first found liable." Brown v. Acorn Acres, Inc., Superior Court, judicial district of New London, Docket No. 117980 (August 23, 2000, Martin, J.) (28 Conn.L.Rptr. 24).
Unlike § 10-235, General Statutes § 7-465 requires a municipality to " pay on behalf of any employee ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee ..." and it also contemplates actions " maintained against such municipality and employee jointly." It is well established that an injured third party may bring an action directly against a municipality under § 7-465. Gaudino v. Hartford, 87 Conn.App. 353, 355-56, 865 A.2d 470 (2005).
Perhaps due to the ambiguity in Burns reflected in these Superior Court decisions, the Appellate Court recently did address the issue before this court, albeit in dicta. Following the trial court’s denial of the motion to strike the plaintiff’s claim under § 10-235 in Costa, the trial court entered summary judgment in favor of the defendants, as in Burns based on governmental immunity. In affirming that judgment, unlike in Burns, the Appellate Court went out of its way to say, " [a]lthough not at issue in the present appeal, we note that § 10-235 does not create a direct cause of action allowing a person allegedly injured by a negligent employee of a board of education to sue the board directly." (Internal quotation marks omitted.) Costa v. Board of Education, 175 Conn.App. 402, 405 n.2, 167 A.3d 1152, cert. denied, 327 Conn. 961, 172 A.3d 801 (2017). Certainly in light of this statement, it is clear that Burns offers no support for the position taken by the plaintiff in this case.
The court concludes that § 10-235 does not provide an injured party a direct cause of action against a board of education. Therefore, the court grants the defendants’ motion to strike the third count of the plaintiff’s revised complaint.
II
COUNT FIVE: INDEMNIFICATION PURSUANT TO § 7-101a
The fifth count of the plaintiff’s revised complaint asserts a direct action against the towns pursuant to § 7-101a. The defendants move to strike this count, arguing that a majority of Superior Court decisions have held that § 7-101a does not create a direct cause of action for injured third parties. The plaintiff argues that the § 7-101a claim is properly pleaded as a derivative cause of action.
Section 7-101a provides in relevant part, that " (a) Each municipality shall protect and save harmless any municipal officer ... or any municipal employee, of such municipality from financial loss and expense ... arising out of any claim, demand, suit or judgment by reason of alleged negligence ... of such ... employee while acting in the discharge of his duties. (b) In addition to the protection provided under subsection (a) of this section, each municipality shall protect and save harmless any such municipal officer or municipal employee from financial loss and expense ... arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for a malicious, wanton or wilful act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act."
The Appellate Court has recently stated that " [s]ubsections (a) and (b) of § 7-101a plainly provide three causes of action: (1) a municipal employee’s indemnification action pursuant to § 7-101a(a); (2) a municipal employee’s indemnification action pursuant to § 7-101a(b); and (3) a municipality’s reimbursement action pursuant to § 7-101a(b)." O’Brien v. New Haven, 178 Conn.App. 469, 475 (2017); see Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985). Critically absent from the causes of action identified by the Appellate Court is a direct action by an injured third party against the municipality. As with § 10-235, the language of § 7-101a(a) and (b) solely governs the relationship between the individual employee and the municipality; it does not create a direct right of action for a third party. " The language of § 7-101a gives no indication that the legislature intended the statute to provide an injured person an independent cause of action against a municipality. The statute merely places the burden on a municipality to protect (i.e., to pay the costs of litigation and provide counsel for) and save harmless (i.e., indemnify) its employees who are sued for negligent acts committed in the scope of their employment. The statute says nothing about the relationship between the injured party and the municipality and speaks only of the relationship between the municipal employee and his employer." Early v. Allen, Superior Court, judicial district of Hartford, Docket No. CV-06-5003421-S (February 7, 2007, Hale, J.T.R.) (42 Conn.L.Rptr. 802); see Vibert v. Board of Education, supra, 260 Conn. 173-74 (recognizing similarity between " protect and save harmless" language in § 10-235 and § 7-101a).
O’Brien was officially released on December 5, 2017, which was after the parties had briefed and argued the present motion.
Unlike § 10-235, § 7-101a contains a notice provision that provides in relevant part: " (d) No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefore arose nor unless written notice of the intention to commence such action ... has been filed with the clerk of such municipality within six months after such cause of action has accrued." Although subsection (d) indicates that a direct action may be brought against either a municipality or an employee, it does not expressly address whether that action may be brought by an injured third party. Subsection (d), however, is not an independent source of a right of action. It applies only to actions brought under § 7-101a(a) for indemnification and to an action for reimbursement of defense expenses pursuant to § 7-101a(b). Orticelli v. Powers, supra, 197 Conn. 14 (" [a] plain reading of the whole statute indicates that the limitation and notice provisions of § 7-101a[d] are applicable only to actions for indemnification maintained under § 7-101a[a] and to an action for reimbursement of defense expenses pursuant to § 7-101a[b]" ).
The notice provision in § 7-101a(d) is comparable to that included within § 7-465, pursuant to which an injured third party may bring a direct action against both an employee and a municipality. See Gaudino v. Hartford, 87 Conn.App. 353, 355-56, 865 A.2d 470 (2005). The notice requirement in § 7-465(a) provides in relevant part: " No action ... shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefore arose and written notice of the intention to commence such action ... has been filed with the clerk of such municipality within six months after such cause of action has accrued ..." Although the notice provisions in these two statutes are similar, there is one critical distinction: § 7-101a(d) bars an action for lack of timely and proper notice " against such municipality or employee" and § 7-465(a) bars an action for lack of timely and proper notice " against such municipality and employee jointly ." The inconsistency between the conjunctive use of " and" and the disjunctive use of " or" reflects that the notice provision of § 7-465 contemplates a direct action by an injured third party against both the municipality and employee brought by an injured third party, while the notice provision of § 7-101a does not. Thus, § 7-101a(d) does not affirmatively establish a right of an injured party to bring a direct cause of action against a municipality.
Section 7-465 provides in relevant part: " (a) Any town, city or borough ... shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ..."
Although the issue of a third party’s right to bring a direct action was not before the court in O’Brien v. New Haven, supra, 178 Conn.App. 469, the court nevertheless pointed out the difference between § 7-101a and § 7-465. " Although the notice requirement and time limitations of § 7-101a appear to be similar to ... § 7-465, the statutes provide for different types of actions and, thus, involve different causes of action to trigger the time limitations. It is important to note that [u]nlike [§ ] 7-465, which permits a plaintiff to bring a claim against a municipality to indemnify [its] employees, [§ ] 7-101a provides indemnification to the employee from the municipality, and does not contain a direct action by a non-employee plaintiff against the municipality." (Internal quotation marks omitted.) Id., 480 n.7. A majority of Superior Courts, as well as Connecticut’s federal district courts have reached the same conclusion. See Rodriguez v. Anker, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-6000465-S (January 12, 2009, Downey, J.) (citing numerous similar decisions); Early v. Allen, supra, 42 Conn.L.Rptr. 802; Atwood v. Ellington, 427 F.Supp.2d 136, 142 (2006) (§ 7-101a " governs allocation of legal expenses between a municipality and its employees who are subject to civil suits, but does not provide a direct cause of action against a municipality" [internal quotation marks omitted] ); Karbowicz v. Naugatuck, 921 F.Supp. 77, 78 (1995) (same).
The plaintiff relies upon the general principles of derivative claims set forth in the trial court’s decision in Costa v. Board of Education, supra, Superior Court, Docket No. CV-13-6021448-S, and her interpretation of Burns v. Board of Education, supra, 30 Conn.App. 602. Neither of these cases, of course, addresses the question whether § 7-101a affords a direct cause of action on behalf of an injured third party. Moreover, as discussed above, in Costa the Appellate Court expressly disagreed with the trial court on the direct action issue under § 10-235 and implicitly disapproved of the plaintiff’s interpretation of Burns . Costa v. Board of Education, supra, 175 Conn.App. 405 n.2.
The plaintiff also relies upon Kaya v. New London, Superior Court, judicial district of New London, Docket No. CV-05-4004203 (December 20, 2010, Cosgrove, J.). In that case, the court acknowledged that § 7-101a does not include language providing a direct cause of action to an injured third party, but allowed the claim to stand against the defendant because " the plaintiff is not bringing direct causes of action against the city of New London in the third, sixth and eleventh counts. Instead, the plaintiffs allege causes of action pursuant to § 7-101a against the city based upon its obligation to indemnify the city employees. The court finds that the language of § 7-101 allows the maintenance of these counts for statutory indemnification of the defendant employees of the municipality." The court does not identify the language it relies upon and the statute does not contain language such as that in § 7-465 giving an injured third party the right to pursue a municipal employee’s right to indemnification against a municipality. Section § 7-465 requires municipalities to " pay on behalf of any employee" all sums they become legally obligated to pay as a result of their negligence on the job. Section 7-101a, like § 10-235, indemnifies employees against loss, not liability and is not enforceable until after a judgment enters against the employee. O’Brien v. New Haven, supra, 178 Conn.App. 487-88.
Accordingly, the court concludes that the language of § 7-101a does not provide an injured third party a direct cause of action against a municipality. The court grants the defendants’ motion to strike the fifth count of the plaintiff’s revised complaint.
CONCLUSION
Based upon the foregoing, the court grants the defendants’ motion to strike counts three and five of the plaintiff’s revised complaint because neither § § 10-235 nor 7-101a provide her with a direct cause of action against a board of education or municipality.