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Kaye v. Town of Manchester

Court of Appeals of Connecticut

January 2, 1990

David KAYE
v.
TOWN OF MANCHESTER et al.

Argued Oct. 11, 1989.

Page 460

[20 Conn.App. 440] Harold R. Cummings, South Windsor, with whom was Vincent J. Purnhagen, Ellington, for appellant (plaintiff).

Edward W. Gasser, with whom, on the brief, was Patricia Shea Lovell, Hartford, for appellees (named defendant et al.).

Constance L. Epstein, Hartford, with whom, on the brief, was Michael L. McDonnell, Middletown, for appellee (defendant Leonard Seader).

Before BORDEN, NORCOTT and FOTI, JJ.

[20 Conn.App. 441] NORCOTT, Judge.

The plaintiff, David Kaye, appeals from the trial court's granting of the defendants' [1] motions for summary judgment. The plaintiff claims that the trial court erred (1) in concluding that the claim against defendant Leonard Seader was barred by the statute of limitations and granting his motion for summary judgment and (2) in granting the motion for summary judgment filed by the town of Manchester and the town board of education. We find no error.

This case involves a complex procedural history. The plaintiff gave notice to the town and board of his intention to commence suit on January 23, 1983. He initially instituted suit on September 14, 1984, against the town and the board. The complaint was in two counts, one against each municipal defendant, and was based solely upon allegations of negligence in the construction and maintenance of a public sidewalk located at Bennett Junior High School, where the plaintiff allegedly fell and injured himself on September 22, 1982. On September 17, 1984, service of this complaint was made on the Manchester town clerk and on "Leonard Seader, Chairman" of the board.

On February 17, 1987, the town filed a motion for summary judgment claiming that the plaintiff's suit was intended as an action pursuant to General Statutes § 7-465, [2] and that § 7-465 is solely an indemnification

Page 461

[20 Conn.App. 442] statute and does not create a right of action against the town or board without a cause of action against an individual employee of that town. On July 15, 1987, in response to the original defendants' motion, the plaintiff filed a request to amend his complaint, and, on the next day, he filed a motion to cite in, as additional defendants, Seader and William Dion, the board's supervisor of buildings and grounds. On August 31, 1987, the court granted both the motion to amend and the motion to cite in the additional parties.

The plaintiff's amended complaint, filed on September 8, 1987, added several counts. In addition to alleging negligence by the town and board, the amended complaint named Seader and Dion as defendants, alleged negligence by them and claimed that they were employees of the town under § 7-465. The complaint further alleged that the board is an employee of the town under § 7-465 and that the town is liable under § 7-465 by way of indemnity. On September 4, 1987, almost five years after the incident, Seader was served with the amended complaint. On February 22, 1988, the trial court granted Dion's motion to dismiss the action as to him on the ground of insufficient service of process. [3] Thereafter, Seader filed his motion for summary [20 Conn.App. 443] judgment claiming that the suit against him was barred by the statute of limitations. The trial court agreed and granted the motion.

On December 22, 1987, the town and board moved for summary judgment, claiming that when an action against specific municipal employees is dismissed or barred, the plaintiff cannot recover against the town or board pursuant to § 7-465. The court granted these motions on January 9, 1988. On January 27, 1988, the court rendered its judgment, concluding that because the cause of action against Seader was barred by the statute of limitations, the town and board were not liable under § 7-465 since there remained no viable suit against an individual employee.

The plaintiff first claims that the trial court erred in granting Seader's motion for summary judgment. He claims that his original action was a § 7-465 action, that Seader was actually a party to this action from the date of the original complaint and that he was put on notice by both the plaintiff's letter of notice and the original service of the summons and writ. The plaintiff further claims that when he finally amended his complaint and cited in Seader, his amendment related back to the date of the original action. We disagree.

The plaintiff's argument is flawed because his original complaint cannot be construed to be a claim under § 7-465, Seader was not a party to the original complaint, and he was not on notice that he was being sued individually. We conclude that the amended complaint did not relate back to the date of the original complaint, and, therefore, the amended claim was barred by the statute of limitations.

The plaintiff's original complaint, in order to comport with § 7-465, must have necessarily claimed liability on the part of Seader individually and indemnity therefor by his municipal employer. " 'While § 7-465 [20 Conn.App. 444] provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment ... it is quite clear that the municipality does not assume the liability in the first instance.' Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 [1972]." Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977). "The municipality's liability is

Page 462

derivative." Ahern v. New ...

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