Action for Indemnification against a Municipality

August 12, 2009

Conn. Gen. Stat. § 7-465 Allows an Indemnification Action

Generally, a municipality is immune from liability unless the legislature has enacted a statute abrogating such immunity.[1] Two such statutes are Conn. Gen. Stat. § 7-465[2] and § 52-557n. Those statutes coexist in that parties may choose to rely on either statute as long as they meet the requirements therein.[3] Section 52-557n allows an action to be brought directly against a municipality for the negligent actions of its agents. Section 7-465 allows an action for indemnification against a municipality in conjunction with a common-law action against a municipal employee.

A plaintiff injured by the acts of a municipal employee may choose to bring a suit directly against the municipality. Pursuant to Conn. Gen. Stat. § 52-557n, a plaintiff may sue a municipality directly and forego suing the municipal official under § 7-465.[4] Section 52-557n provides for direct assumption of liability by the municipality. It was part of Tort Reform in 1986, and intended to codify and limit the common law rules concerning governmental immunities.[5] Subsection (a) provides that a municipality is liable for the negligence of its employees acting within the scope of their employment unless the acts require the exercise of judgment or discretion.[6] As worded, it tracks the common law distinction between ministerial and discretionary acts.[7]

Instead, a plaintiff may choose to bring a suit jointly against both the employee and the municipality pursuant to § 7-465. Section 7-465 provides for derivative or vicarious liability of the municipality based on the primary negligence of the employee. The major premise of the statute is that the action primarily is one against the employee himself, while the town's obligation is secondary, arising only for the purpose of indemnification one the liability of the employee has been established. In no event may the municipality be held liable unless the municipal employee individually becomes obligated to pay by reason of the liability imposed upon him by law. It therefore follows that the breach of duty, if any, is that of the municipal employee as opposed to that of the municipality.[8] While § 7-465 provides an indemnity to a municipal employee from his employer in the event the former suffers a judgment, it is quite clear that the municipality does not assume liability in the first instance. The municipality's liability is derivative.[9]

It is helpful to understand the origins of the statute and the situation it was meant to address. At common law, municipal officers were liable for their own torts, but the municipality, their municipal "master," was not vicariously liable for those torts.[10] This is what § 7-465 was designed to change.[11] Enacted in 1955, the statute effectively circumvented the general common law immunity of municipalities from vicarious liability for their employee's acts by permitting injured plaintiffs to seek indemnification from a municipal employer for such acts under certain circumstances and after conformance with certain statutory requirements, but it did not bar a plaintiff from seeking redress from those employees.[12]

A plaintiff bringing suit under § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification. This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence. Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual.[13] This action remains at heart a negligence action against the employee. If judgment is rendered against the employee, according to § 7-465, the town cannot raise governmental immunity as a defense to its vicarious liability; it the employee is found not liable, the town is automatically released from liability.[14]

In Gaudino v. Town of E. Hartford, 87 Conn. App. 353 (2005), the plaintiff injured persons sued the defendant town, seeking damages for injuries sustained in a head-on collision caused by a high-speed police pursuit. The complaint alleged that agents of the town were negligent, careless and wanton in their attempt to apprehend the suspect, who had declared that he intended to kill himself and others by causing an automobile collision. The trial court held that the claims failed because the injured persons sued the town under § 7-465 without bringing an action against employees or agents of the town. The Appellate Court held that, while § 52-557n allowed an action to be brought directly against a municipality for the negligent actions of its agents, § 7-465 allowed an action for indemnification against a municipality in conjunction with a common-law action against a municipal employee. Because § 7-465 also required an action against a municipal employee, and since no such action was brought, summary judgment on the ground of municipal immunity properly was granted.

[1] Caruso v. Milford, 75 Conn. App. 95, 99 (2003).

[2] Conn. Gen. Stat. § 7-465(a) provides in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, 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, except as set forth in this section, 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 damages was not the result of any willful or wanton act of such employee in the discharge of such duty. ... Governmental immunity shall not be a defense in any action brought under this section. ..."

[3] Spears v. Garcia, 66 Conn. App. 669, 680 (2003), aff'd 263 Conn. 22 (2003).

[4] Levien v. Iron Horse Development, Inc., 1996 Conn. Super. LEXIS 836.

[5] Conway v. Wilton, 238 Conn. 653, 672 (1996).

[6] Conn. Gen. Stat. § 52-557n(a)(2)(B).

[7] Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68 (1988).

[8] Gagliardi v. Consiglio, 1997 Conn. Super. LEXIS 2574.

[9] Kaye v. Manchester, 20 Conn. App. 439, 443-44 (1990). See also Ivemey v. Watertown, 30 Conn. App. 742, 752 (1993) (town's liability is contingent on the judgment against its employee).

[10] Sanzone v. Board of Police Commissioners, 219 Conn. 179, 193 (1991).

[11] Jabs v. Burlington, 23 Conn. Supp. 158, 160 (1962).

[12] Sanzone v. Board of Police Commissioners, 219 Conn. 179, 193 (1991).

[13] Wu v. Town of Fairfield, 204 Conn. 435, 438 (1987).

[14] Kostyal v. Cass, 163 Conn. 92, 97 (1972).