Frances LACASSE et al.
J. William BURNS, Commissioner of Transportation. Zbigniew KILIAN
J. William BURNS, Commissioner of Transportation.
Argued Jan. 2, 1990.
Michael E. Grossmann, with whom, on the brief, was Timothy Brignole, Hartford, for appellants (plaintiffs in the first case).
Kenneth I. Friedman, with whom, on the brief, was Michael E. Wolf, Hartford, for appellant (plaintiff in the second case).
Louis B. Blumenfeld, Hartford, for appellee (defendant in both cases).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.
[214 Conn. 465] SHEA, Associate Justice.
Each of these appeals presents the following questions: (1) May a plaintiff take advantage of the accidental failure of suit statute, General Statutes § 52-592,  when seeking to bring an action for personal injuries allegedly caused by a defective highway maintained by the state? (2) Does a dismissal entered pursuant to Practice Book § 251  constitute a failure "for [214 Conn. 466] any matter of form," and thus allow a plaintiff to bring suit under the authority of § 52-592? (3) Does service made in accordance with General Statutes § 52-593a  "commence" an action as specified in § 52-592? We answer all of these questions in the affirmative and, consequently, conclude that the trial court erred in granting the defendant's motions to dismiss.
In the first case the plaintiffs, Frances and Marshall Lacasse, brought an action against the defendant, the commissioner of transportation (commissioner), pursuant to General Statutes § 13a-144,  alleging personal
injuries caused by a defective portion of highway in the town of Granby. The plaintiff in the second case, Zbigniew Kilian, also brought an action against the commissioner pursuant to § 13a-144, alleging personal [214 Conn. 467] injuries caused by a defective portion of highway in the town of Berlin. Both actions were dismissed pursuant to Practice Book § 251, on June 19, 1987. The present writ, summons and complaint in each case was delivered to a sheriff for the purpose of service upon the commissioner on June 17, 1988, in the second case and on June 18, 1988, in the first case. The commissioner filed a motion to dismiss in each action, alleging that: (1) the doctrine of sovereign immunity precluded the bringing of any action against the state under the authority of § 52-592; (2) the dismissal of an action pursuant to Practice Book § 251 did not constitute an accidental failure of suit, as defined in § 52-592; and (3) neither action was "commenced" within one year of the prior dismissals, as mandated by § 52-592.
The trial court, in identical memoranda of decision, disagreed with the commissioner's second and third contentions, but agreed with the first and, therefore, granted the commissioner's motions to dismiss. The court reasoned that because § 52-592 contained neither an express nor an implied waiver of the state's sovereign immunity, the plaintiffs were strictly limited to the remedy provided them in § 13a-144. The court concluded that since there had been "no consent [by the state] to maintain the 'new action' described in ... § 52-592," the plaintiffs were foreclosed from bringing any action because more than two years had passed since the time of the injuries complained of. General Statutes § 13a-144. We disagree with this reasoning and conclude that the plaintiffs were not precluded from maintaining their actions pursuant to § 52-592. 
[214 Conn. 468] I
The issue presented by the plaintiffs' claims of error is whether the legislature, by waiving the state's sovereign immunity in § 13a-144, intended that procedural statutes and rules of court be applied to the state, just as they would be applied to any other litigant. We conclude that the legislature so intended.
"That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut." Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596 (1963); White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). "The General Assembly, by appropriate legislation, can waive the state's sovereign immunity from suit and authorize suits against the state." Murphy v. Ives, supra. "Indeed this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute." White v. Burns, supra, 213 Conn. at 312, 567 A.2d 1195. "But the state's sovereign right not to be sued without its consent is 'not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication.' " Murphy v. Ives, supra, 151 Conn. at 262-63, 196 A.2d 596, quoting State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 (1908). Thus, where the state has "permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed." White v. Burns, supra.
In applying these principles, our decisions have consistently treated the state with respect to procedural [214 Conn. 469] matters, 
once its immunity has been waived, in a manner identical to any other litigant, except for the taxation of costs; State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978); State ex rel. Foote v. Bartholomew, 111 Conn. 427, 432, 150 A. 308 (1930); State v. Anderson, 82 Conn. 392, 394, 73 A. 751 (1909); or the award of prejudgment interest when a defendant has failed to accept an offer of judgment equal to or less than the amount recovered. Struckman v. Burns, 205 Conn. 542, 556, 534 A.2d 888 (1987). Those cases were based upon the understanding that "[w]hen a generalized statute allows plaintiffs to collect certain varieties of damages in particular types of civil actions ... it does not waive a state's sovereign immunity in that area unless there is an express waiver." Id., at 559, 534 A.2d 888. This principle is inapplicable, however, since the question in these cases is not whether the state's monetary liability can be expanded beyond that provided by a statute permitting the state to be sued, but, rather, whether the state, having consented to being sued, is subject to procedural statutes applicable to all other litigants.
We have long held that, once involved in an action, the state enjoys the same status as any other litigant. Thus, for example, the state, when it brings an equitable action, opens "the door to any defense or cross-complaint germane to the matter in controversy.... [214 Conn. 470] A sovereign who asks for equity must do equity." State v. Kilburn, supra, 81 Conn. at 12, 69 A. 1028. "[B]y bringing an action, the State subjects itself to the procedure established for its final and complete disposition in the courts, by way of appeal or otherwise." Reilly v. State, 119 Conn. 217, 220, 175 A. 582 (1934); see State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 160 n. 1, 70 A.2d 109 (1949); Winchester v. Cox, 129 Conn. 106, 113, 26 A.2d 592 (1942). We see no reason to depart from this principle when, as in these cases, the state has specifically waived its sovereign immunity and the procedural statute in question affects only the time during which the suit may be brought rather than the potential amount of the state's liability. Cf. Korb v. Bridgeport Gas Light Co., 91 Conn. ...