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Clinton Rowe v. Raymond Godou et al., Appellate Court of Connecticut (Decision released November 3, 1987)

Factual and Procedural Background

The plaintiff sought recovery for damage to his motor vehicle allegedly caused by negligent operation of a fire truck. The named individual defendant, Raymond Godou, was alleged to have been operating a fire truck owned by the City of Bridgeport. The defendants filed a motion to strike the plaintiff's complaint on the ground that the action was "barred by statute"; the motion itself did not identify the statute, but the defendants' accompanying memorandum of law cited General Statutes 7-308. The trial court (Mihalakos, J.) granted the motion to strike on the grounds that the complaint failed to allege compliance with the notice requirements of General Statutes 7-308 and failed to plead a distinct legal theory against the City of Bridgeport. The plaintiff appealed. The Appellate Court concluded that there was no error in the trial court's action.

Legal Issues Presented

  1. Whether a motion to strike that states generally that a complaint is "barred by statute," but is accompanied by a memorandum identifying the specific statute, sufficiently specifies the reasons for insufficiency under Practice Book §154.
  2. Whether Practice Book §109A's requirement that pleadings grounded on a statute "specifically identify" that statute by number is mandatory or merely directory.
  3. Whether the plaintiff's complaint, by alleging that the fire truck was operated by the individual defendant "as the agent, servant and/or under a general authority to drive," alleged facts bringing the claim within General Statutes §7-308 (thus requiring statutory notice), and whether the failure to allege compliance with §7-308's notice provisions warranted striking the complaint.
  4. Whether, given the single-count complaint that sought recovery jointly against the individual and the municipality, the plaintiff could maintain a separate common-law negligence claim against the individual defendant despite noncompliance with §7-308.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The defendants' motion to strike was fatally defective because it did not comply with Practice Book §154 by failing to "distinctly specify" the reasons for attacking the complaint.
  • The motion also violated Practice Book §109A because the defendants did not identify by number the statute on which they relied in the motion itself.
  • The trial court improperly assumed facts not pleaded—specifically that Godou was a paid or volunteer fireman performing fire duties—because the complaint did not expressly allege that status or that the statutory notice was not given.
  • Even if §7-308 applied to the municipality, the statute does not bar a common-law action against the individual defendant in his personal capacity.

Appellees' (Defendants') Arguments

  • The complaint was "barred by statute"; the memorandum of law filed with the motion identified General Statutes §7-308 (assumption of liability for damages caused by firemen) as the governing statute, and the complaint failed to allege compliance with that statute's notice and timing requirements.
  • The complaint did not plead a distinct legal theory against the City of Bridgeport separate from the statutory cause of action, and the single-count, joint pleading brought the claim within §7-308.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Morris v. Hartford Courant Co., 200 Conn. 676 (1986) General statement in a motion to strike that complaint fails to state a claim is usually insufficient to satisfy Practice Book §154. Used to observe that a merely general assertion is typically insufficient, but distinguished because the defendants' motion here, though terse, adequately apprised the court when considered with the memorandum.
Kid v. Board of Education, 195 Conn. 90 (1985) Practice Book requirements for motions to strike: memorandum of law does not absolve the need to state reasons in the motion itself. Referenced (in a note) to support that requirement; the opinion holds the defendants' motion nonetheless sufficiently apprised the court.
International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57 (1951) Test to determine whether a statutory provision is mandatory or directory (substance vs. convenience). Applied as part of analysis concluding Practice Book §109A is directory rather than mandatory.
State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444 (1963) If the prescribed mode of action is substantive, the provision is mandatory. Included in the discussion of the mandatory/directory test applied to Practice Book §109A.
Winslow v. Zoning Board, 143 Conn. 381 (1956) Where a provision secures order, system and dispatch it is generally directory. Quoted to support the conclusion that procedural rules may be directory when they govern convenience and order.
Broadriver, Inc. v. Stamford, 158 Conn. 522 (1969) Statutory provisions that prescribe what shall be done do not necessarily invalidate action when not complied with. Used to support the directory characterization for procedural requirements.
Fidelity Trust Co. v. BVD Associates, 196 Conn. 270 (1985) Authority cited in the line of cases addressing mandatory versus directory character of procedural provisions. Part of the chain of authority supporting the directory conclusion for Practice Book §109A.
In re Adrien C., 9 Conn. App. 506 (1987) Discusses application of the mandatory/directory test to procedural requirements. Quoted as support for treating Practice Book §109A as directory.
Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498 (1986) Referenced in context of the directory/mandatory analysis of procedural provisions. Used as supporting precedent for the court's statutory/procedural construction approach.
State v. White, 169 Conn. 223 (1975) Precedent cited in connection with the directory/mandatory discussion. Included among authorities relied upon to analyze the nature of procedural mandates.
State ex rel. Barnard v. Ambrogio, 162 Conn. 491 (1972) Cited as authority within the directory/mandatory framework. Part of the supporting authority for the court's conclusion about Practice Book §109A.
DeTeves v. DeTeves, 202 Conn. 292 (1987) Rules of statutory construction apply to construction of rules of practice. Directly invoked to justify applying statutory-construction tests to Practice Book §109A.
State v. Cook, 183 Conn. 520 (1981) Example of interpreting practice-book provisions as mandatory when they protect important rights. Used to distinguish instances where the word "shall" is mandatory; contrasted with §109A.
State v. James, 197 Conn. 358 (1985) Cited in support of applying statutory-construction principles to practice book rules. Part of the authority base for treating Practice Book §109A as subject to statutory-construction analysis.
State v. Gethers, 193 Conn. 526 (1984) Another cited authority endorsing application of statutory rules to practice rules. Used as supporting precedent for the court's methodological approach.
Grievance Committee v. Trantolo, 192 Conn. 15 (1984) Cited for the proposition that rules of statutory construction apply to rules of practice. Included among cases supporting that approach.
Tramontano v. Dilieto, 192 Conn. 426 (1984) The use of the word "shall" does not invariably create a mandatory duty; statutes must be construed as a whole. Applied to support the view that Practice Book §109A's use of "shall" did not automatically make it mandatory.
Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43 (1984) Example where a practice rule protecting important rights is construed as mandatory. Contrasted with §109A to show why some rules are mandatory while others are directory.
King v. Board of Education, 195 Conn. 90 (1985) When ruling on a motion to strike, the trial court is limited to the facts alleged in the complaint. Applied to explain the scope of review on a motion to strike; court examined the complaint's allegations only.
Drazen v. Drazen, 180 Conn. 572 (1980) A motion to strike admits all facts well pleaded. Relied upon to frame the standard for considering the motion to strike here.
Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541 (1980) Supports the principle that a motion to strike admits well-pleaded facts. Used as precedent for the court's approach to the motion to strike.
Fraser v. Henninger, 173 Conn. 52 (1977) When separate counts are pleaded (one common-law against employee and another statutory/indemnification against municipality), failure to comply with notice provisions as to the municipal count does not necessarily bar a separate common-law claim against the employee. Distinguished on its facts: because the plaintiff in this case pleaded only a single joint count, Fraser's result did not save the plaintiff's claim.
Keogh v. Bridgeport, 187 Conn. 53 (1982) Identifies §7-465 (municipal indemnification) as analogous to §7-308 (firemen) and clarifies coverage distinctions. Used to show the analogy and to assist in distinguishing prior precedent.
Wakelee v. DeSanto, 152 Conn. 44 (1950s citation in opinion) Supports that an injured party may maintain a common-law action against a municipal employee covered by an indemnification statute. Cited in Fraser and referenced to explain the limited circumstances in which a common-law claim can survive.

Court's Reasoning and Analysis

The court proceeded in a series of analytical steps tied closely to the facts as pleaded and to procedural-rule interpretation:

  1. The court first addressed the sufficiency of the defendants' motion to strike under Practice Book §154 (which requires that a motion to strike "distinctly specify the reason or reasons" for claimed insufficiency). Although the motion's language—stating the complaint was "barred by statute"—was arguably unspecific, the court found that when considered together with the defendants' accompanying memorandum citing General Statutes §7-308, the motion sufficiently apprised the trial court of the reasons for the claimed insufficiency. The court noted prior authority that a wholly general statement is usually insufficient, but distinguished this case because the material issue was adequately submitted to the court.
  2. Next, the court examined Practice Book §109A, which requires that pleadings grounded on a statute "specifically identify" that statute by number. The court applied the standard for discerning whether a procedural requirement is mandatory or directory (substance versus convenience) and concluded that §109A is directory rather than mandatory. The opinion relied on a line of Connecticut authorities applying the mandatory/directory test and on the principle that rules of statutory construction govern construction of practice rules. The court reasoned that §109A was adopted to enhance clarity and convenience in pleadings, to promote efficient case management, and did not expressly invalidate pleadings for failure to comply. Thus, the defendants' failure to identify §7-308 in the motion itself did not render the motion invalid.
  3. The court then turned to whether the complaint, as pleaded, placed the claim within §7-308. The court observed that on a motion to strike the trial court is limited to the facts alleged in the complaint and that a motion to strike admits all well-pleaded facts. The complaint alleged that the City of Bridgeport owned the fire truck and that the defendant Godou operated it "as the agent, servant and/or under a general authority to drive." The court concluded that such broad allegations were "clearly worded to implicate Godou in his capacity as either a paid or volunteer fireman who was performing fire duties" and that, therefore, the complaint sought recovery pursuant to §7-308. Because §7-308 imposes specific notice and timing requirements for actions against municipalities and firemen, the complaint's failure to allege compliance with §7-308's notice provision rendered it deficient.
  4. Finally, the court addressed the plaintiff's contention that he should nonetheless be able to maintain a common-law action against the individual defendant personally. The court distinguished Fraser v. Henninger, in which the plaintiff had pleaded separate counts (a common-law negligence count against the employee and a statutory indemnification count against the municipality), allowing the common-law count to survive despite noncompliance with the statutory notice as to the municipality. Here, by contrast, the plaintiff filed only a single-count complaint that joined the individual and the municipality in one cause of action grounded in §7-308. Because the complaint was not framed as a separate common-law count against the employee, the plaintiff could not avoid §7-308's notice requirements by asserting a common-law claim against the individual. The court concluded that the trial court correctly found the complaint deficient and properly granted the motion to strike.

Holding and Implications

Holding: The Appellate Court affirmed the trial court's grant of the defendants' motion to strike and the judgment for the defendants (the court stated "No error").

Implications:

  • Direct effect: The plaintiff's complaint was properly struck because (1) the pleading, as pleaded, fell within the ambit of General Statutes §7-308 and (2) it failed to allege compliance with §7-308's notice provisions. Because the single-count complaint joined the individual and the municipality in one statutory-based cause of action, the plaintiff could not maintain a separate common-law negligence claim against the individual defendant under the facts and pleadings presented.
  • Procedural interpretation: The court held that Practice Book §109A's requirement that pleadings grounded on a statute identify the statute by number is directory, not mandatory; consequently, failure to cite the statute by number in the motion itself did not invalidate the motion where the memorandum identified the statute and the issue was adequately presented to the court.
  • Precedential scope: The opinion interprets Practice Book §109A as directory under the mandatory/directory test but does not purport to create a novel substantive rule beyond applying established statutory and practice-rule construction principles. The decision's immediate consequence is to affirm dismissal under the specific facts and pleadings of this case.

This summary is limited to and derived exclusively from the text of the provided opinion.

CLINTON ROWE v. RAYMOND GODOU ET AL.

The plaintiff sought to recover for property damage to his vehicle allegedly caused by the negligence of the named defendant in operating a fire truck owned by the defendant city of Bridgeport. The defendants moved to strike the complaint on the ground that the action was barred by statute. The defendants did not specify in the motion itself the statute on which it was based. They did, however, claim in an accompanying memorandum that the action was barred by noncompliance with the statute ( 7-308) governing actions for damage caused by firemen. The trial court granted the motion and rendered judgment for the defendants. On the plaintiff's appeal, held; 1. The plaintiff's claim to the contrary notwithstanding, the defendants' motion to strike, although not specific, sufficiently apprised the trial court of the reasons for the claimed insufficiency of the plaintiffs complaint. 2. Because the rule of practice (109A) requiring that a claim grounded on a statute identify the number of that statute is directory rather than mandatory, the plaintiff could not prevail on the challenge to the motion to strike which he had based on that rule. 3. The trial court did not err in concluding that the plaintiffs action was brought against the named defendant in his capacity as a paid or volunteer fireman and that the complaint was deficient due to its failure to allege compliance with the notice requirement of 7-308; moreover, the plaintiff having alleged in his one count complaint a single cause of action which was directed against both defendants jointly and which the trial court correctly determined to be based on 7-308, the plaintiff could not maintain the action as a common law claim against the named defendant.

BIELUCH, J.

The plaintiff brought this action seeking to recover for property damage to his vehicle allegedly caused by the negligent operation by the named defendant, Raymond Godou, of a fire truck owned by the defendant city of Bridgeport. The defendants moved to strike the complaint on the ground that it was "barred by statute," but they failed to cite statutory authority. In support of their motion, the defendants filed a memorandum of law which referred to General Statutes 7308. The trial court granted the defendants' motion to strike on the grounds that the notice requirements of General Statutes 7-308 were not alleged, and that the plaintiff failed to plead a distinct legal theory against the defendant city of Bridgeport. The plaintiff has appealed from the subsequent judgment rendered on the motion to strike. We find no error.

The motion alleged as follows: "The defendants herein, Raymond Godou and the City of Bridgeport, move to strike the complaint in the above captioned case because it is barred by statute and file herewith the attached memorandum of law."

"[General Statutes] Sec. 7-308. ASSUMPTION OF LIABILITY FOR DAMAGES CAUSED BY FIREMEN. The word `municipality,' as used in this section, shall have the meaning ascribed to it by section 7-314 and the words `fire duties' mean those duties the performance of which is defined in said section. Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman of such municipality all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the occurrence, accident, injury or damages complained of, was performing fire duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman in the discharge of such duties. This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious. The municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality. No action for personal injuries or damages to real or personal property shall be maintained against such municipality and fireman unless such action is commenced within one year after the cause of action therefor has arisen nor unless notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued. No action for trespass shall lie against any fireman crossing or working upon lands of another to extinguish fire or for investigation thereof. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the fireman may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such fireman. No mention of any kind shall be made of such statement by any counsel during the trial of such action."

The plaintiff's initial claim is that the motion to strike filed by the defendants was itself fatally flawed because it did not comply with Practice Book 154 and 109A. Specifically, the plaintiff claims that the motion failed "distinctly [to] specify" the reasons for the claimed insufficiency of the plaintiff's complaint as required by Practice Book 154, and did not specifically identify by number the statute upon which it was grounded in violation of Practice Book 109A. We do not agree with the plaintiff's analysis of either rule of practice.

"[Practice Book] Sec. 154. — REASONS
"Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."

"[Practice Book] Sec. 109A. — ALLEGATIONS BASED ON STATUTORY GROUNDS
"When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979."

A general statement contained in a motion to strike that the complaint does not state a claim upon which relief can be granted is usually insufficient to comply with Practice Book 154. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986). Nevertheless, a motion to strike which is unspecific, but which adequately submits the material issue to the court, as is the case here, is sufficient to comply with Practice Book 154. The statement in the defendants' motion to strike that the plaintiff's action Was "barred by statute" was arguably unspecific, but did sufficiently apprise the court of the reasons for the claimed insufficiency of the plaintiff's complaint.

We note that the requirement of Practice Book 155 that a motion to strike be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of 154 that the reasons for the claimed pleading deficiency be specified in the motion itself. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986); Kid v. Board of Education, 195 Conn. 90, 94 n. 4, 486 A.2d 1111 (1985).

As to the second portion of the plaintiff's first claim, Practice Book 109A provides that when any claim made in a pleading is grounded on a statute, "the statute shall be specifically identified by its number." The defendants' motion to strike did not identify General Statutes 7-308 as the basis for their claim that the plaintiff's action was "barred by statute." We conclude that the requirement of Practice Book 109A is directory, rather than mandatory. Therefore, we find that the defendants' motion did not violate its terms.

"`The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, [ 143 Conn. 381, 388, 122 A.2d 789 (1956)]. "Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply." Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).' Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985)." In re Adrien C., 9 Conn. App. 506, 510-11, 519 A.2d 1241 (1987); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 501, 294 A.2d 529 (1972).

"The rules of statutory construction are `clearly applicable' to the construction of our rules of practice." DeTeves v. DeTeves, 202 Conn. 292, 298, 520 A.2d 608 (1987), citing State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981); State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Gethers, 193 Conn. 526, 551, 480 A.2d 435 (1984); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Applying this principle of statutory and procedural rule construction to the case before us, we hold that the requirement of Practice Book 109A is directory, rather than mandatory. The procedural rule that a "statute shall be specifically identified by its number . . . [in] pleadings filed after September 1, 1979," relates to a matter of convenience. The purpose of this rule, adopted in 1979, is self-evident. No such procedural rule existed prior to that time. It was clearly designed to make future pleadings more specific, detailed and particularly informative by pinpointing statutory authority. Such a rule promotes the often expressed judicial policy of full, informative, comprehensive and open disclosure of legal claims, which promotes the identification, narrowing and resolution of issues before the court. Such a rule improves the efficient movement of the court's business for the convenience and benefit of litigants before it. Its purpose is desirable, but not mandatory. The rule does not expressly or implicitly invalidate a pleading for failure to comply.

We note that Practice Book 109A was adopted by the judges of the Superior Court on March 30, 1979, effective July 1, 1979, and was made applicable to pleadings filed after September 1, 1979. No similar rule governed demurrers. See Practice Book, 1963, 105 through 114.

"The use of the word `shall,' though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain the legislative intention." Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984); cf. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 51, 478 A.2d 601 (1984) ("Practice Book rule that protects important rights such as the right of jury trial and of appeal is generally construed as mandatory not directory"); State v. Cook, supra, 523 (Practice Book 594 "mandates that the warrant [of arrest] shall be signed by the judicial authority"). We conclude, therefore, that Practice Book 109A did not require that the motion to strike identify precisely the statute upon which it was based.

The plaintiff also maintains that the trial court erred in granting the defendants' motion to strike because the court assumed facts not pleaded. The plaintiff argues that because his complaint did not allege that the defendant Godou was a "paid [or] volunteer fireman . . . performing fire duties" at the time of the accident, it did not allege the facts necessary to come within the ambit of 7-308. In addition, the plaintiff maintains that even if his action is assumed to be based on the statute, there is nothing of record to prove that he did in fact fail to file the prescribed notice pursuant to the statute.

In ruling upon a motion to strike, the trial court is limited to the facts alleged in the complaint. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985). A motion to strike admits all facts well pleaded. Drazen v. Drazen, 180 Conn. 572, 573 n. 3, 430 A.2d 1288 (1980); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

The plaintiff's complaint alleged that at the time of the accident the defendant city was the owner of a fire truck being operated by the defendant Godou "as the agent, servant and/or under a general authority to drive." This broad language was clearly worded to implicate Godou in his capacity as either a paid or volunteer fireman who was performing fire duties for the city at the time of the accident. That conclusion is inescapable. The trial court did not err in finding that the plaintiff sought recovery for damages to his property pursuant to 7-308. There was, therefore, no error in the court's conclusion that the plaintiff's complaint was deficient due to its failure to allege compliance with the notice provision as required by the statute.

The plaintiff asserts that even if the procedural mandates of 7-308 were not met, the statute does not bar an action against the defendant Godou, an employee of the municipality, in his individual capacity. The plaintiff cites Fraser v. Henninger, 173 Conn. 52, 56-57, 376 A.2d 406 (1977), in support of this argument. The procedural posture of that case, however, distinguishes it from the case here and supports our conclusion that the plaintiff's action against the individual employee, as well as the case against the municipal employer, was barred by the plaintiff's failure to comply with the notice provision of 7-308. In Fraser v. Henninger, supra, the claimant brought a two count action against a town employee and a municipality, respectively. The first count alleged a common law action for negligence on the part of the named defendant, an employee of the town of Greenwich. The second count sought recovery from the defendant town pursuant to General Statutes 7-465, an indemnification statute analogous to 7-308 in that it provides for the assumption by municipalities of liability for damages caused by their employees, "except firemen covered under the provisions of section 7-308." See Keogh v. Bridgeport, 187 Conn. 53, 62-63, 444 A.2d 225 (1982). Because the plaintiff in Fraser brought separate actions in two counts against the employee and the municipality, respectively, the Supreme Court held that his failure to comply with the notice provision of the statute as to the second count was not fatal to his separate claim against the defendant employee in the first count. "[A]n injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute. Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833; see annot., 71 A. L. R.3d 90, 98 2, 148 27(b)." Fraser v. Henninger, supra, 56.

The plaintiff in the case before us filed a single count complaint alleging one cause of action jointly against the defendants in their respective roles as employee and employer. This single cause of action was brought against the individual defendant "as the agent, servant and/or under a general authority to drive" the fire truck owned by the defendant city. The trial court correctly found that this complaint was based on 7-308. If the plaintiff's complaint had contained a separate common law negligence count against the individual defendant solely, the plaintiff could have avoided the consequences of his failure to meet the requirements of 7-308 applicable to a cause of action against the municipal employer. This, the plaintiff did not do. "[T]he provisions of 7-465 which permit an action to be maintained against the municipality and the employee jointly do not mean that a plaintiff may not proceed against the employee alone if for any reason the plaintiff cannot prevail upon the count alleging facts to support a recovery from the municipality of any judgment obtained against the employee." Fraser v. Henninger, supra, 57. This analysis applies to the parallel provisions of 7-308. Having failed to comply with the notice provisions of 7-308, the plaintiff was not entitled to maintain his separate common law cause of action against the individual defendant.

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ROWE v. GODOU
(Nov 3, 1987)