Opinion
FSTCV166028506S
01-17-2017
Victor Figueroa-Nazario v. Owen Montague
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re OBJECTION TO AMENDMENT (#135.00)
Kenneth B. Povodator, J.
The introductory portion of the plaintiff's memorandum (#140.00) accurately and succinctly states the issue currently before the court:
By Summons and Complaint dated March 1, 2016, plaintiff brought a suit for damages against the Town of Greenwich, and Town of Greenwich police officers Detective Jeffrey Stempien and Officer Craig Zottola (hereinafter " defendants"), for an incident occurring on March 24, 2014. By motion dated August 15, 2016, plaintiff moved for leave to amend the complaint to, inter alia, assert negligence claims against Jeffrey Stempien and Craig Zottola, in their individual capacities, as independent contractors hired by CL& P aka Northeast Utilities.
By pleading dated August 26, 2016, the defendants objected to the motion for leave to amend upon the ground that plaintiff sought to create a new unrelated cause of action in his proposed amended complaint.
The court has broad discretion with respect to allowing or disallowing an amendment to complaint, considerations including timeliness, prejudice to the non-moving party, etc. While substantive issues generally are not well suited to determination in the context of an objection to a request to amend, relation back for purposes of a statute of limitations issue often is given consideration in this context, and often is determinative. In this case, it is a significant issue between the parties, as it is clear that the amendment was filed long after the statute of limitations on the plaintiff's claims against the defendants would have run, absent a relation back to the original commencement of the action. (The action was commenced within days of the running of the presumptive statute of limitations, and the amendment was filed approximately 5 months later.)
The plaintiff contends that Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), is compelling authority in support of his position, the Connecticut Supreme Court having engaged in a lengthy analysis of relation back in a situation that arguably is closely analogous to the one before this court (concluding that relation back was appropriate). In Gurliacci, when the defendant moved to dismiss the claim asserted against him (determined by the Supreme Court properly to have been an issue that should have been raised by motion to strike) based on the status of the defendant as a fellow employee of the plaintiff (both members of the Stamford Police Department), the plaintiff attempted to amend her complaint to assert exceptions to fellow-employee immunity, i.e., willful and malicious misconduct or acting outside the scope of employment. In essence, the court ruled that the change from the defendant acting in the scope of his employment to a claim that he either was acting willfully and maliciously or was outside the scope of his employment did not create such a change as to warrant a denial of relation back to original commencement of the action.
Although General Statutes § 7-465 and General Statutes § 31-293a historically have had analogous provisions relating to exceptions to fellow-employee immunity from suit, the events in Gurliacci took place during a brief period of asymmetry--fellow employee suits arising from operation of a motor vehicle were allowed under § 31-293a (applicable to non-municipal employees) but fellow employee suits arising from operation of a motor vehicle were not (yet) allowed under § 7-465 (municipal employees).
Simplistically, in Gurliacci, the only thing that changed was the characterization of immutable facts. The then-Deputy chief of police (Stamford Police Department) had gone out to dinner with friends, and during the course of the evening admittedly had consumed four alcoholic drinks. At some point during the evening, he saw one or more individuals whom he believed were " of interest" professionally i.e. organized crime figures, and decided to try to follow them. In the course of driving his vehicle, he collided with the vehicle operated by the plaintiff, a patrol officer in the Stamford Police Department. Therefore, the only issues raised by the amendment were characterization of these facts--was his driving simply negligent, or was it reckless and malicious, or was it outside the scope of his employment?
In this case, however, the plaintiff's amendment reiterated the negligence claim based on Mayer's operation of a motor vehicle, but added that Mayer was acting either wilfully, wantonly, and maliciously or outside the scope of his employment. The new allegations did not inject two different sets of circumstances and depend on different facts. (Internal quotation marks and citation, omitted.) Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914, 924 (1991).
The amendment here, however, goes further. To be sure, there is a commonality of issue as to whether the individual defendants were negligent in what they were doing, but there is a proposed change in identification of the principal for whom they were working when they did (or didn't do) what is alleged in the complaint. The facts related to claimed employment by the town are different than the facts associated with proof that they were working for the CL& P (and indeed, there is a question as to how that status should be characterized--employee or independent contractor or . . .?).
This, in turn, leads to the question of whether the characterization issue properly should be framed as one of official versus individual capacity. Suing the individual defendants as police officers is a form of action directed to them in their official capacity; the amendment seeks to sue them in their individual/personal capacity. The capacity in which a party sues or is being sued is more than just a technicality; while in some instances, our appellate courts have allowed substitution of a " correct" capacity for an " incorrect" capacity, e.g., Kortner v. Martise, 312 Conn. 1, 91 A.3d 412 (2014), more typically the capacity in which a litigant is involved in a proceeding has consequences (and limitations) associated with that status. Thus, in Guarnieri v. Guarnieri, 104 Conn.App. 810, 812, 936 A.2d 254, 256 (2007), the court held that an individual who is no longer a shareholder loses standing to pursue a derivative claim against the corporation. (The plaintiff is not seeking to " correct" the claimed status, but rather to add an additional status.)
Courts routinely distinguish between status as an individual and as a representative of an estate.
In the present case, because the summons identified the plaintiff only as 'Rita Litvack' and not as executrix of the Kaplan estate, the court properly held that the plaintiff lacked standing to sue in a representative capacity. Litvack v. Artusio, 137 Conn.App. 397, 403, 49 A.3d 762, 767 (2012).
Similarly:
The Hillard Bloom trust and the Joan Bloom estate are distinct entities with separate legal identities. Although they apparently share common individuals who are acting in representative capacities in each, the plaintiffs have not alleged facts sufficient to " pierce the veil" of the respective estate and trust and to find a common identity on this basis alone. Bloom v. Miklovich, 111 Conn.App. 323, 331, 958 A.2d 1283, 1288 (2008).
Cf. Rowe v. Godou, 209 Conn. 273, 273, 550 A.2d 1073, 1074 (1988) (status as paid or volunteer firefighter relevant to indemnification claim but not with respect to claimed negligence of the individual operator of firefighting apparatus).
This ultimately leads to Cumberland Farms .
Our case law has treated persons sued in their official capacity as parties different from those sued in their individual capacity. See C & H Management, LLC v. Shelton, 140 Conn.App. 608, 614, 59 A.3d 851 (2013) (concluding for res judicata purposes that municipal official sued in individual capacity was not same party as municipal official who was sued in mandamus action, nor were two in privity). Because the defendant trooper Dubois in his official capacity is a separate party from Dean Dubois in his individual capacity, the plaintiff cannot replead its complaint to allege recklessness, and attempt thereby to bring Dean Dubois into the lawsuit in his individual capacity without ever having made proper service on him. Cumberland Farms, Inc. v. Dubois, 154 Conn.App. 448, 462, 107 A.3d 995, 1004 (2014).
The court recognizes that the legal posture was different, especially due to the existence of sovereign immunity and a potentially-applicable statutory waiver of that immunity (with the correlative net effect being that the state was being sued based on the claim of negligent conduct of the official-capacity actor). Notably, the C& H Management case cited therein did not involve state actors but rather municipal level conduct.
Returning to Cumberland Farms :
In this case, the plaintiff fully pleaded a cause of action against one defendant, the state. The plaintiff failed to not only serve defendant trooper Dubois properly in his individual capacity but also to plead any individual capacity claims against him, such that the plaintiff would be able, by way of amendment, to plead a cause of action against him. 154 Conn.App. 448, 107 A.3d 995.
The trial court incorrectly determined, however, that the plaintiff could replead to assert a cause of action against the defendant trooper Dubois. The trial court had before it an official capacity claim alleging negligence of a state trooper acting within the scope of his duties, and an allegation that the state was liable for such negligence pursuant to § 52-556. The plaintiff did not serve the defendant trooper Dubois in his individual capacity, nor did its complaint contain allegations directed at the defendant trooper Dubois in his individual capacity. Therefore, the plaintiff could not state a cause of action against the defendant trooper Dubois because to do so would require allowing the plaintiff to add individual capacity claims against a defendant who was present in the case in his official capacity only. In Miller v. Egan, supra, 265 Conn. at 303-04, 828 A.2d 549, our Supreme Court reversed the trial court's denial of the defendants' motion to dismiss official capacity claims against them. The court declined to allow the plaintiff to claim for the first time on appeal that he had sought relief against the defendants in their individual capacities in addition to the state, reasoning, [o]therwise, it would simply be too easy for a plaintiff, who originally had alleged causes of action against a state officer only in his official capacity, thus seeking relief solely against the state, subsequently to claim that he also sought relief against the state officer in his individual capacity. By utilizing this tactic, a plaintiff could, at least partially, avoid dismissal of a complaint due to sovereign immunity and subject the unsuspecting state officer to personal liability.
We find additional guidance in Bowen v. Seery, 99 Conn.App. 635, 636, 915 A.2d 335, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007), in which the plaintiff sued a state police trooper alleging that the officer caused him injury by negligently striking his motor vehicle. The officer filed a motion to dismiss, arguing that sovereign immunity applied and therefore that the court lacked subject matter jurisdiction. The plaintiff filed a request to amend his complaint to add a count alleging recklessness against the officer. The court declined to permit the amended complaint and granted the defendant's motion to dismiss. Id. The plaintiff appealed, arguing that the court improperly determined that the state was not a party to the action and claiming that he had attempted to add the state as a party prior to judgment entering. This court affirmed the judgment of dismissal, stating [that] [the officer] is the sole defendant in this action, and . . . [the plaintiff's] request [to amend] was not an attempt to add the state as a defendant but rather to add a count of recklessness against [the officer]. (Internal quotation marks, footnote and citations, omitted.) 154 Conn.App. at 460-61.
Ultimately, the court concludes that the " who were they working for" aspect of this case distinguishes it from Gurliacci and makes it closer to--and governed by--those cases distinguishing the capacity in which a party is being sued as being a material and substantive distinction, a distinction of consequence and not subject to relation back; Cumberland Farms, supra ; C & H Management, supra . In Gurliacci, the court distinguished a then-recent case in which relation back had not been allowed, Sharp v. Mitchell, 209 Conn. 59, 546 A.2d 846 (1988): " The new allegations did not inject 'two different sets of circumstances and depend on different facts'; but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability, " 218 Conn. 531, 590 A.2d 914. The plaintiff here is injecting a new set of circumstances and the new theory depends on distinct facts--for whom were the individual defendants acting? Were they acting as governmental employees (or agents), or acting as individuals hired by a non-governmental third party--a third party that happens to be the plaintiff's employer? Regardless of status, the defendant in Gurliacci was under a duty of care in operation of his motor vehicle regardless of the amendment; here, the existence and scope of duties is more dependent on the distinctions identified in this proposed amendment.
For all of these reasons, the objection is sustained.