Opinion
HHBCV176039098S
01-16-2018
The LAW ENFORCEMENT ALLIANCE OF SOUTHINGTON v. TOWN OF SOUTHINGTON, et al.
UNPUBLISHED OPINION
OPINION
John L. Cordani, Judge
BACKGROUND
The plaintiff, the Law Enforcement Alliance of Southington (Alliance), is an unincorporated association certified by the State Board of Labor Relations to provide representation under the Municipal Employees Relations Act. The defendant, the town of Southington (Southington), employs Alliance members as police officers. The defendant, Argonaut Insurance Company (Argonaut), provides insurance to Southington, and the defendant, Trident Insurance Services, LLC (Trident), provides insurance administration services to Southington. Officer Ryan Lair is a member of the Alliance bargaining unit and a Southington police officer. Officer Lair and Southington have been separately sued by the estate of Brandon D. Caron (estate) for: (i) negligence as to Officer Lair; (ii) statutory indemnification as to Southington; and (iii) statutory negligence as to Southington. See Caron v. Lair, Superior Court, Judicial District of New Britain, Docket No. CV-17-6037277-S (Lair Lawsuit). In the Lair Lawsuit, the estate alleged that Officer Lair was negligent in failing to prevent his girlfriend from drinking and driving and requests indemnification from Southington for any damages awarded against Officer Lair for his negligence. In this matter, Alliance seeks (i) declaratory judgment against Southington directing Southington to indemnify Officer Lair if he becomes obligated to pay in the Lair Lawsuit, and do the same for other members of Alliance in the same situation at any point in the future, and (ii) order of mandamus directing Southington to pay all sums, which Officer Lair may become obligated to pay in the Lair Lawsuit, and to provide or pay for Officer Lair’s defense therein. By a requested amendment to Alliance’s prayer for relief, Alliance requests a similar declaratory judgment against Argonaut and Trident regarding provision of a defense and indemnification for Officer Lair as a result of the Lair Lawsuit.
PROCEDURAL HISTORY
On August 4, 2017, the plaintiff commenced this action by service of a summons and complaint. After a court-convened status conference, the court issued a dispositive motion scheduling order, setting the deadline for amending the pleadings, filing of dispositive motions, and a hearing. On October 5, 2017, the plaintiff amended its pleading. The court has allowed a further amendment by the plaintiff to the request for relief. The defendants now move to dismiss the plaintiff’s amended pleading.
Count one of the complaint here seeks a declaratory judgment directing Southington to pay " all sums which Officer Lair becomes obligated to pay" in the Lair Lawsuit as a result of indemnification under General Statutes § 7-465. Count two seeks an order of mandamus ordering Southington to " pay all sums which Officer Lair becomes obligated to pay" as a result of the Lair Lawsuit pursuant to the indemnification under § 7-465. Count three of the complaint seeks a declaratory judgment directing Southington to pay " all sums which Officer Lair becomes obligated to pay" in the Lair Lawsuit as a result of indemnification under General Statutes § 7-101a. Count four seeks an order of mandamus ordering Southington to " pay all sums which Officer Lair becomes obligated to pay" as a result of the Lair Lawsuit pursuant to the indemnification under § 7-101a. The amendment to the claim for relief requests similar declaratory judgment relief against Argonaut and Trident regarding provision of a defense and indemnification for Officer Lair as a result of the Lair Lawsuit.
LEGAL STANDARD
A motion to dismiss assumes all of the facts properly pled, and tests whether, with those assumed facts, the court may grant relief. The defendants’ motions to dismiss here, in part, challenge the subject matter jurisdiction of the court. A motion to dismiss is properly used to assert a lack of jurisdiction over the subject matter of an action. Practice Book § 10-30(a)(1). Subject matter jurisdiction exists if a court has the authority to adjudicate a particular type of legal dispute. Southern New England Telephone Co. v. Dept . of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).
The defendants raise issues of ripeness and standing. Because each of these grounds implicates the court’s jurisdiction over the subject matter of the case, they must be resolved as threshold issues. The plaintiff bears the burden of establishing subject matter jurisdiction if challenged. The defendants also raise the prior pending action doctrine as a reason for dismissing the pleadings.
ANALYSIS
I
RIPENESS
Ripeness arises from similar considerations to the " case and controversy" requirement of the federal constitution. In our context, public policy and equitable considerations of the doctrine of ripeness seek to prevent courts from adjudicating abstract or hypothetical disagreements. The rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. Before asserting jurisdiction over this matter, this court must be satisfied that this case does not present a hypothetical disagreement, or a claim that is entirely contingent on some event that has not and may never transpire. Cadle Co. v. D ’Addario, 111 Conn.App. 80, 82-83, 957 A.2d 536 (2008).
In this matter, Alliance seeks (i) declaratory judgment against Southington directing Southington to indemnify Officer Lair if he becomes obligated to pay in the Lair Lawsuit, and do the same for other members of Alliance in the same situation at any point in the future, and (ii) an order of mandamus directing Southington to pay all sums that Officer Lair may become obligated to pay in the Lair Lawsuit, and to provide or pay for his defense therein. By a requested amendment to Alliance’s prayer for relief, Alliance requests a declaratory judgment against Argonaut and Trident similar to that sought against Southington. As noted, Officer Lair is a police officer employed by Southington.
A
Claims Against Southington
Any obligation that Southington has to Officer Lair (or to other similarly situated Alliance members) under these circumstances derives from the following two statutes:
Section 7-465 provides in relevant part: " Any town ... 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 for ... physical damages to person or property ... 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, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty."
Section 7-101a(a) provides in pertinent part: " Each municipality shall protect and save harmless any municipal officer ... or any municipal employee of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in discharge of his duties."
Section 7-465 is clearly an indemnification statute. By its own clear terms, it applies to " all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded." (Emphasis added.) Thus, it is clear that the indemnification obligation imposed by this statute engages only when liability is imposed and damages are awarded in the underlying matter. Further, the indemnification liability is contingent upon the indemnified employee establishing that (i) the damages arose from the performance of his duties and within the scope of his employment and (ii) the damages did not result from any willful or wanton act of the employee. Lastly, and importantly, this statute does not establish any obligation to provide a defense to the employee. Given the foregoing, the liability of a town to an employee under this statute engages after the underlying liability has been imposed on the employee, damages awarded, and the employee establishes that he meets the statute’s conditions. Since the foregoing conditions that engage Southington’s liability under this statute have not yet been met, this claim brought by Alliance against Southington under this statute is clearly not ripe.
Connecticut law supports the parties’ proposition that § 7-101a is also an indemnification statute, which does not provide an obligation to provide a defense upfront. Instead § 7-101a requires Southington to " protect and save harmless" the employee " from any financial loss and expense, including legal fees and costs" arising out of claims for alleged negligence or alleged infringement of civil rights by such employee " while acting in the discharge of his duties." Thus, the statute requires after the fact indemnification. In this regard, Spatola v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV-07-4005617-S (September 26, 2007, Pickard, J.) (44 Conn.L.Rptr. 242), applied the Supreme Court interpretation of Vibert v. Board of Education, 260 Conn. 167, 173-74, 793 A.2d 1076 (2002), which related to a similar statute that used the same " protect and save harmless" language. It is not surprising that many towns do in fact provide a defense so that they may control the defense and the costs thereof. However, the statute itself does not mandate the provision of a defense up front and the parties here concede this point.
The plaintiff itself, in its opposition brief to Southington’s motion to dismiss at pages 12-13, asserts that " this plaintiff cannot ask of this court that Southington (as opposed to Southington’s insurer) appear and defend." The plaintiff further states, " [Vibert v. Board of Education, 260 Conn. 167, 173-74, 793 A.2d 1076 (2002) ] holds the municipality is not required to appear and defend ..." which indicates its agreement that the statute does not include an obligation to defend.
Given the foregoing, Southington’s liability under § 7-101a does not arise until an employee incurs a financial loss or expense, including legal fees and costs, arising out of alleged negligence or for alleged infringement of the civil rights of another person " while acting in the discharge of his duties." In contrast to § 7-465, the liability under § 7-101a arises from " alleged" negligence or infringement of civil rights, as opposed to imposed damages. Thus, under § 7-101a, one should compare the underlying allegations to the terms of the statute. In this case, the Lair Lawsuit alleges that Officer Lair was negligent. However, the statute also requires that the employee be " acting in the discharge of his duties" when the alleged negligence occurred. In this regard, the court interprets the statute as requiring that the employee be actually " acting in the discharge of his duties" as opposed to have been alleged to be " acting in the discharge of his duties." Said another way, the court interprets the statute such that the two instances of " alleged" in the statute do not modify the subsequent phrase " while acting in the discharge of his duties." Thus, before Southington’s liability under § 7-101a can arise, the employee must establish that he was " acting in the discharge of his duties." Given the court’s interpretation of this statute, Southington’s liability cannot be established in this case until Officer Lair has been found to have been acting in the discharge of his duties. This factual determination will only be made once the Lair Lawsuit has been resolved.
Since § 7-101a provides for indemnification of legal fees and costs, Officer Lair has presumably already begun to incur potentially indemnifiable expenses. However, in interpreting a similar statute, the Supreme Court in Vibert stated, " [b]ecause of a school board’s potential exposure, it may wish to provide the teacher with legal representation rather than simply indemnify the teacher postjudgment." (Emphasis added.) Vibert v. Board of Education, supra, 260 Conn. 178. This clearly indicates the Supreme Court’s interpretation that indemnification liability under this statute arises only postjudgment in the underlying matter. The court in Spatola v. New Milford, supra, 44 Conn.L.Rptr. 242, similarly held that a cause of action under this statute arises once judgment in the underlying matter enters. These findings are consistent with the fact that § 7-101a does not provide for an obligation to defend the indemnitee, for if the statute allowed for an obligation to indemnify ongoing prejudgment legal fees and costs, this would be tantamount to providing a defense, and in many ways would be even better for the indemnitee.
As to Southington, a determination of declaratory judgment and/or an order of mandamus in this matter is necessarily contingent upon future events, namely determinations to be made in the Lair Lawsuit. These future events have not occurred yet, and may not occur, in the sense that the Lair Lawsuit may possibly determine these factual questions in a manner that extinguishes the potential liability of Southington here. Thus, the requests being posed by the plaintiff here remain theoretical at this point and are not ripe. This conclusion is foretold in the plaintiff’s own request for relief. Where the plaintiff requests: (i) declaratory judgment against Southington directing Southington to indemnify Officer Lair if he becomes obligated to pay in the Lair Lawsuit, and do the same for other Alliance members in the same situation at any point in the future, and (ii) an order of mandamus directing Southington to pay all sums, which Officer Lair may become obligated to pay in the Lair Lawsuit, and to provide or pay for Officer Lair’s defense therein. The " if" and the " may become obligated" foretell the correct result here, namely, that Alliance’s claims are not ripe.
Tellingly, at page 20 of Alliance’s opposition to Southington’s motion to dismiss, Alliance states, " the plaintiff in this case seeks a declaratory judgment and mandamus directing [Southington] to indemnify the plaintiff if and when that event occurs ." The reference to " if and when " is noteworthy here. The court assumes that the second instance of the " plaintiff" in the foregoing quote refers to Officer Lair and yet to be determined members of Alliance, not Alliance itself. This second reference to the " plaintiff" as Officer Lair also foretells issues with standing.
The plaintiff’s request that the court order the defendants to " do the same for other members of Alliance in the same situation" further compounds the ripeness issue. The rights of Alliance members in this regard are dependent upon the factual determinations described herein and are thus contingent upon events that have not yet occurred and may indeed never occur. This request clearly attempts to pull the court into hypothetical situations and injuries, which the doctrine of ripeness forbids. Further, if the court were to entertain such relief, which it will not, the imprecision of " other members of Alliance in the same situation" is merely an invitation to further litigation in future cases over whether the situation there was the same or similar to the situation here. The court cannot provide such indefinite and imprecise relief, as the doctrine of ripeness prohibits it. Given all of the foregoing, Alliance’s claims in counts one through four against Southington are dismissed as not being ripe for determination.
Instructive in this regard, at page 20 of Alliance’s opposition to Southington’s motion to dismiss, Alliance states: " [Southington’s refusal to acknowledge its indemnification obligation] is causing damage to Officer Lair and other similarly situated officers given the uncertainty, emotional distress and potential for incurring current expenses ..." (Emphasis added.) The statement referring to " potential for incurring" is particularly instructive.
B
Claims Against Argonaut and Trident
As to Argonaut and Trident, they have issued and administered an insurance policy for Southington. The prayer for relief requests declaratory judgment against Argonaut and Trident directing them to appear and defend Officer Lair in the Lair Lawsuit and to indemnify Officer Lair for any attorneys fees incurred and any judgment that may enter in the Lair Lawsuit. As such, their liability arises from the insurance policy’s provisions. The policy, which was attached to the Salerno affidavit, indicates under section II that employees, such as Officer Lair, are insureds under the policy " but only for acts that were both within the scope of his or her duties" and " motivated, at least in part, by a purpose to serve" Southington. The policy under section I, subsection (A) provides that the insurer: " will pay those sums that the insured becomes legally obligated to pay as ‘damages’ resulting from a ‘wrongful act.’ The definition of " wrongful act" includes acts, errors, and omissions. Importantly, the policy provides under section I, subsection (A) for a " duty to defend against any ‘suit’ seeking those ‘damages.’ " Thus, the duty to defend is critically important in determining ripeness of this claim for two reasons. First, because the duty to defend arises from any " suit" seeking damages, the duty to defend arises when allegations are made that satisfy the conditions of the policy. Thus, the analysis for the duty to defend becomes a comparison between the allegations made in the underlying lawsuit and the policy’s conditions. Second, because the policy includes a duty to defend, an injury arises to the insured upon the instance of allegations in a lawsuit that satisfy the policy’s conditions. Thus, because the policy contains a duty to defend, the liability to defend may arise prior to any final factual determinations. This situation is different from the claims against Southington in this regard.
Here, the Lair Lawsuit contains, inter alia, the following allegations:
1. " In one or more of the following ways ... Officer Lair failed to take steps which a reasonable police officer would have taken to prevent Pikora from operating a motor vehicle." (Emphasis added.)
2. " Despite being considered to be " off duty, " [Officer Lair] was required to act within the scope of his duties imposed on him as a police officer yet failed to do so." (Emphasis added.)
3. Allegations that Officer Lair violated various obligations that he had as a Southington police officer.
4. " The subject incident was not a result of a willful or wanton act of ... Officer Lair in the performance of those duties."
5. " The acts of ... Officer Lair, set forth herein, are duties imposed upon a police officer by law, whether on or off duty, and ... Officer Lair was engaged in the immediate and actual performance of his duties as a Southington police officer."
6. Officer Lair was negligent in his acts and omissions and such negligence caused the plaintiff’s injury. In addition to the foregoing, Southington itself has been sued for negligence derivative of Officer Lair’s acts and omissions pursuant to General Statutes § 52-557n.
Given (i) the duty to defend provided by the insurance policy, (ii) the terms of the insurance policy, and (iii) the allegations in the most recently amended complaint in the Lair Lawsuit, the position of Argonaut and Trident that the claims here are not ripe, at least as they apply to Officer Lair and the Lair Lawsuit, is not well placed. What good would a right to a defense be if that right could not be determined at the time a lawsuit is filed? However, as noted in the next section of this decision, Alliance lacks standing to bring these claims.
II
STANDING
In Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986), the Supreme Court adopted the federal standard for associational or representational standing, as delineated by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 337, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Under that framework, " [a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) Assn. of Health Care Facilities, Inc. v. Worrell, supra, 616.
According to the affidavit submitted by Stephen Salerno, the purpose of the Alliance is the " fair representation of all bargaining unit members in regard to all terms and conditions of employment with ... Southington, including, but not limited to, disciplinary matters, benefits payable to members either on-duty or off-duty such as health coverage for bargaining unit members and their families, pension benefits in retirement, compensation ... and all other terms and conditions, which are related to employment with Southington." The rights being sought here are rights of indemnification controlled by statutes and an existing insurance policy, and are not subject to negotiation with a town. General concerns of Alliance members over future events that have not occurred and may not occur are insufficient. Further, given the court’s determination that any claims made here for Alliance members concerning future situations similar to the Lair Lawsuit are not ripe, and, therefore, cannot be made at this time, Alliance’s qualification under the second prong of this test is called into question. Thus, it is the court’s finding that determination of a single member’s personal indemnification rights under these fixed statutes and existing insurance policy as a result of a preexisting litigation is not sufficiently germane to Alliance’s purpose to provide Alliance standing to assert and determine those individual rights without the presence of the individual member in the lawsuit.
To satisfy the third prong of the associational standing test, the claims asserted and relief sought cannot require the participation of the association’s individual members. Stated another way, if the decision in this case requires the presence of Officer Lair to make a binding determination of the rights requested in the prayer for relief then Alliance does not have standing to bring this action.
Alliance styles its complaint as a request for declaratory judgment and for mandamus, however, at the heart of Alliance’s complaint and requests for relief are requests that the defendants indemnify Officer Lair individually and pay him an as yet to be determined amount for any damages that may be awarded against him in the Lair Lawsuit and for the as yet to be determined expense of defending the Lair Lawsuit. Further, it is clear that general claims by Alliance for future situations involving its members are not ripe and cannot be brought at this time. Thus, Alliance is seeking a specific determination of the liability of Southington, and the liability of the other two defendants, to Officer Lair as a result of the Lair Lawsuit and any award of compensation therewith. These requests clearly require the presence of Officer Lair to determine his specific rights and monetary award under this set of circumstances.
A determination of Officer Lair’s rights in this case is inextricably tied to determinations to be made in the Lair Lawsuit. As already pointed out, the " if’ and the " may become obligated to pay" in the prayer for relief foretell these inextricable ties between the two lawsuits. Any order of this court directing (i) Southington to " pay all sums which Officer ... Lair may become obligated to pay" in the Lair Lawsuit, (ii) Southington to indemnify Officer Lair if he becomes obligated to pay in the Lair Lawsuit, and/or (iii) Argonaut and Trident to " appear and defend, " " indemnify [Officer] Lair and pay for his attorney fees, " and " pay for any judgment entered against [Officer] Lair" in the Lair Lawsuit, necessarily require the presence of Officer Lair to be adjudicated. This is made explicitly clear by, inter alia, the explicit tie between each of the requests for relief and the Lair Lawsuit itself.
Officer’s Lair’s participation in this case would be necessary for at least three independent reasons. First, factual determinations and a judgment in the Lair Lawsuit are required to make necessary determinations here, except as to the duty to defend under the insurance policy. Second, Officer Lair’s participation and testimony in this case would be required to make a determination as to whether the various conditions of the statutes and/or the insurance policies (other than the duty to defend, which arises from allegations) are met. These are factual determinations that are dependent upon Officer Lair’s actions and failures to act in the circumstances described in the Lair Lawsuit and cannot be established without Officer Lair’s participation and testimony. Third, and most importantly, the requested relief requires a determination of Officer Lair’s personal obligations and rights, which cannot be made without the presence of Officer Lair. There is no allegation or evidence that Officer Lair has agreed to be bound by any decision in this case, or has authorized Alliance to sue on behalf of his specific rights in this matter. In the oral argument regarding this motion to dismiss, the court specifically asked Alliance’s counsel whether a decision in this action would finally and definitively bind Officer Lair regarding his indemnification and insurance rights even in the absence of his personal participation in this lawsuit. Alliance’s counsel responded that the decisions in this litigation would not definitively bind Officer Lair, or other members of Alliance. As such, it is absolutely clear that Alliance does not have the standing necessary to bring these claims without the individual participation of Officer Lair.
For all of the foregoing reasons, Alliance does not have standing to maintain this lawsuit. As such, counts one through four as against all defendants are hereby dismissed for the plaintiff’s lack of standing.
III
PRIOR PENDING ACTION DOCTRINE
" [A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). " A court applying the prior pending action doctrine must examine the pleadings to ascertain whether the actions are virtually alike ... and whether they are brought to adjudicate the same underlying rights." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 230 n.22, 828 A.2d 64 (2003). If " the present case and the prior pending action both (1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives, " the motion to dismiss on the basis of the prior pending action doctrine may properly be granted. Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001); see also Anastasio v. Saint Raphael Healthcare System, Inc., Superior Court, judicial district of New Haven, Docket No. CV-04-0489151-S (July 6, 2005, Lopez, J.); Duprey v. Izzo, Superior Court, judicial district of Tolland, Docket No. CV-02-0078548-S (September 17, 2002, Scholl, J.). " [T]he rule permitting dismissal of an action because of a prior pending action does not apply when the two actions are for different purposes or ends, or where they involve different issues." ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn.App. 78, 713 A.2d 886 (1998).
Count one of the complaint here seeks a declaratory judgment against Southington directing Southington to pay " all sums which Officer Lair becomes obligated to pay" in the Lair Lawsuit as a result of indemnification under § 7-465. Count two seeks an order of mandamus ordering Southington to " pay all sums, which Officer Lair becomes obligated to pay" as a result of the Lair Lawsuit pursuant to the indemnification under § 7-465. In comparison, count two of the Lair Lawsuit seeks indemnification from Southington pursuant to the provisions of § 7-465. The issues presented in counts one and two of this case are identical to the issues presented in count two of the Lair Lawsuit. The defendant, Southington, is the same in each case. The plaintiff in the Lair Lawsuit is the estate. However, the estate’s claim is being made through Officer Lair’s right to be indemnified. In this case, the plaintiff is Alliance. However, in this case, Alliance’s claim is also necessarily being made, to the extent Alliance had standing which it does not, through Officer Lair’s right to be indemnified. Thus, count two of the Lair Lawsuit is essentially identical to the claims in counts one and two of this lawsuit. As a result, counts one and two of this case should be dismissed as against Southington in favor of the prior pending action of count two of the Lair Lawsuit if Alliance were to have standing to bring this lawsuit which it does not.
Further, although indemnification pursuant to § 7-101a is not currently pled in the Lair Lawsuit, this case and the Lair Lawsuit share the essential nucleus of facts and relief objective. Namely, both this case and the Lair Lawsuit share (i) the request that Southington be held liable for Officer Lair’s alleged negligence through indemnification, and (ii) the predicates of whether Officer Lair was acting within the scope of his duties and/or his employment and whether Lair’s culpability exceeded negligence. Given these inherent core similarities, the court can and does exercise its discretion under the prior pending action doctrine to dismiss counts three and four as to Southington.
ORDER
Counts one through four as against Southington are hereby dismissed for lack of ripeness.
Counts one through four as against all defendants are hereby dismissed for lack of standing of the plaintiff to bring the claims.
Counts one through four as to Southington are hereby dismissed under the prior pending action doctrine.