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Want to Sue the State? Get in Line.

(Inside Investigator)

The following article was originally published on Inside Investigator.

Seven years ago, Susan Cardinal attempted to turn left from the west-bound lane of Route 2 onto the I-95 on-ramp at exit 92 when a Department of Transportation employee – part of a crew working at the scene – allegedly walked in front of her car.

She stopped short to avoid hitting the worker, but her car was then struck by an on-coming vehicle traveling in the east-bound lane of Route 2. Susan sustained injuries, including neck and back injuries and a lingering tinnitus that has persisted for the past seven years.

The driver of the other vehicle has since passed away — unrelated to the collision — but who is liable for the accident has yet to be resolved, primarily because Susan’s case has lingered with the Office of the Claims Commissioner since 2017.

(Inside Investigator)

Under Connecticut state law, to pursue a lawsuit against the State of Connecticut, the claim must first go before the Office of the Claims Commissioner, run by Commissioner Christy Scott, to determine whether the lawsuit has merit.

The other driver in this incident claimed that he was not at fault because Susan’s car stopped in his line of travel; Susan claims that she stopped only to avoid striking a state employee. Therefore, Susan, along with her attorney, Scott Camassar, sought in 2017 to take the State of Connecticut to court over the matter to determine who was ultimately liable.

But five years later, despite Connecticut statute requiring claims to be decided upon within a two-year window, that has yet to happen.

Last year, Commissioner Scott moved to deny Susan’s claim, prompting Camassar to seek legislative review by the General Assembly’s Judiciary Committee. The Judiciary Committee reviewed Susan’s claim on March 11 of 2022 and Camassar appeared before the Committee to argue her case.

The Committee ultimately agreed with Camassar that Susan’s case should be allowed to go through the court system and forwarded their recommendation to the General Assembly where it was approved. Neither Susan nor Camassar were made aware of the General Assembly’s approval until contacted by CT Inside Investigator.

“Now that we’ve been cleared to cite the State in for the actions of the worker, I’m hoping that will lead to some sort of global resolution,” Camassar said in an interview. “Susan is still waiting for a resolution.”

“Our lawsuit was filed in early summer of 2017,” Camassar said. “Normally, that would have been resolved before the pandemic even struck. Once the pandemic happened, that added a little bit of delay as far as the court system, but the court system was always waiting on a resolution by the claims commissioner.”

And Susan wasn’t the only one stuck in limbo waiting to hear if she could move forward with having a claim considered in court.

Also appearing before the Judiciary Committee in March was Theodore and Jocelyn Oczkowski, a couple who had contracted with a state technical high school in 2013 to construct an outdoor kitchen. Halfway through the project in 2017, however, the team of students left and, following the resignation of the teacher heading up the project, have never returned.

The Oczkowskis have not yet completed the project and their backyard remains in shambles as they await word on whether they can move forward with a court case. The claim has been pending before the claims commissioner since 2018 and Scott filed for an extension to consider it.

With people waiting years to find out if they can even pursue a court claim against the state – let alone actually win such a case – the delays caused some consternation among members of Judiciary Committee during the March 11 hearing.

“The backlog is embarrassing to the State of Connecticut,” said ranking member on the Judiciary Committee Sen. John Kissel, R-Enfield, during the public hearing. “We as a committee and we as a legislature have given them more resources, more personnel, and yet – I’m guessing the pandemic didn’t help matters, I get it – but still, again, it’s a very long time-frame.”

The claims commissioner was not present at the public hearing.

Were the State a Person…

This past year, 77 cases came before the Judiciary Committee, meaning the complainants were contesting the commissioner’s decision or the commissioner was asking for an extension. The Office of the Claims Commissioner moved to dismiss or deny 28 cases that came before the Judiciary Committee and sought an extension of time to decide upon 49 others.

Nearly all the claims commissioner’s requests for denial, dismissal or extension were granted, except for a few in which the Committee decided against denial or dismissal.

Connecticut, like all states, has sovereign immunity, but, like most states, has enacted laws to allow some claims made against the state a pathway to court. Connecticut is one of only four states that use a special court of claims, board, or commissioner to evaluate whether the claim can move forward in the court system, according to a new report by the Office of Legislative Research.

Under Connecticut statute, to seek monetary damages against the State of Connecticut, the claim must first go before the claims commissioner. The commissioner can authorize payment of claims up to $35,000 and payments over $35,000 approved by the commissioner must be reviewed by the legislature. The claims commissioner is also responsible for determining payouts for wrongful incarceration.

For a lawsuit against the state to move forward, however, the claims commissioner must determine whether it is “just and equitable,” and whether “the claim presents an issue of law or fact which the state, were it a private person, could be held liable,” according to a presentation on the claims commissioner’s website.

From the Office of the Claims Commissioner’s presentation.

This was the crux of Camassar’s argument before the Judicial Committee: that it was not the commissioner’s job to determine whether Susan’s lawsuit would be successful, but rather if the State, were a private person, could potentially be held liable.

However, there are some notable exceptions to what claims go before the commissioner’s office.

In Susan’s case, had the state employee been operating a vehicle when she stopped short, Susan could have taken the claim straight to Superior Court because state statute creates an exception to the sovereign immunity law for motor vehicle accidents involving state-owned vehicles.

“It’s only by virtue of this guy being out of a vehicle, walking in the road, that we got bogged down in the claims commissioner process,” Camassar said.

Camassar isn’t the only attorney who has grown frustrated with Connecticut’s claims process that has left individuals waiting years just to find out if they can go to court.

“It’s terrible, it affects our clients greatly because you’re stuck in limbo waiting for the state to decide if they’re going to give you the right to pursue a potential case,” said Anastasios Savvaides, president of the Connecticut Trial Lawyers Association. “For the last several years, the backlog of cases pending with the claims commissioner has continued to increase and very little work is being done to dispose of the cases sitting there and that’s not what was originally intended when the claims commissioner’s office was created.”

Between 2019 and 2021, the Office of the Claims Commissioner received 1,415 claims and accumulated a backlog of 963 cases based on the number of claims received and the number of claims disposed of listed in the commissioner’s annual reports to DAS.

(Inside Investigator)

Of those 1,415 claims, 73 were awarded monetary payouts by the commissioner and 12 were allowed to proceed to court. The claims commissioner also awarded a total of $12.2 million to several individuals who were wrongfully incarcerated.

“The office is overwhelmed and has essentially become paralyzed,” the Trial Lawyers Association wrote in 2021, testifying in support of a bill that would authorize the governor to appoint deputy commissioners to help ease the backlog.

Those testifying in support of the original bill – which was different from the legislation ultimately passed – included the Metropolitan District Corporation, which manages water and sewer lines in the Hartford Metropolitan District.

The MDC alleges the Connecticut Department of Energy and Environmental Protection has not paid $3.5 million fees for discharging 65,000 gallons of polluted water into their sewer lines every day, according to testimony.

MDC raised the issue in 2018, according to the Hartford Courant, with DEEP claiming MDC had raised their rates too much, but by 2021 the issue remained before the claims commissioner.

“As this continues, the MDC, its eight member towns and ratepayers must, unfairly bear the expense associated with this continuing discharge,” MDC District Counsel Christopher Stone wrote.

What’s the Hold Up?

Claims Commissioner Christy Scott was appointed by Gov. Dannel Malloy in 2016 after the previous claims commissioner, J. Paul Vance Jr., stepped down amid criticism of a payout to several alleged gang members whose sentences were overturned due to prosecutorial misconduct.

Claims commissioners are appointed by the governor and confirmed by the legislature to four-year terms. Scott was reconfirmed for another four years in 2021, but the causes of the backlog and extensive time it takes to render a decision remain unclear, and Commissioner Scott did not return our request for comments or an interview.

In Scott’s 2019 annual report, she cited a “significant backlog” of cases she inherited from Vance, an increasing number of claims submitted to the office and her own health issues that have contributed to the growing number of cases waiting for resolution.

“The productivity of our office was significantly impacted once again, however, by my health issues, to such an extent that I have been forced to take an objective stock of my own need for support, as well as the office’s longstanding need for an improved structure and resources,” Scott wrote. “Because of the sheer volume of motions, and the fairly uncomplicated nature of the majority of them, the assistance of a qualified staff person to resolve them would make a tremendous difference in my ability to keep cases moving through the process, expeditiously.”

According to the 2019 report, there were 80 cases that were more than 2 years old, past the statutory limit. According to information received through a FOI request and sent to CII, as of September 2021, there were 194 open cases seeking lawsuit pending before the Office of the Claims Commissioner that were more than three years old, the oldest dating back to 2007.

(Envato / S2R47BWV5A)

During the 2022 Judiciary Committee hearing, at least two of the cases listed as more than 2 years old in the 2019 annual report came before committee members, including a claim by Kimberly Rice, who says the root system of a tree on state-owned property is strangling the sewer lines running from her house to the street and causing multiple backups into her basement, eventually forcing her to move out of her home temporarily.

Kimberly’s claim was denied in 2021, but the legislature reversed that denial in 2022. The other, a claim by Maureen Monaghan, was denied.

For Rep. Craig Fishbein, R-Wallingford, who is an attorney and ranking member on the Judiciary Committee, the long wait times and backlog at the commissioner’s office is a constitutional matter, namely section 10 of Connecticut’s Constitution that says, “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

(Inside Investigator)

“Certainly, what we’re dealing with here is significant delay. Many of these people are entitled to closure,” Fishbein said in an interview. “I think, on many fronts, it’s unconstitutional.”

Fishbein says even frivolous lawsuits against the state can be disposed of in the court system, noting that frivolous lawsuits are filed by private entities as well and adjudicated accordingly.

“I would be in favor of 60 to 90 days and then a right to sue,” Fishbein said, “so, then you have a filter. But these people having to wait four, five, seven years to find out is just ridiculous.”

Savvaides says some headway was made last year when the legislature authorized Gov. Ned Lamont to appoint six deputy commissioners to help ease the backlog of cases. The legislation also adjusted some of the time limits for the claims commissioner, requiring a decision with eighteen months or else the claim gets handed to a deputy commissioner who then has ninety days to make a decision.

However, emails obtained under the Freedom of Information Act and sent to CII, show that although the governor could appoint six deputy commissioners on July 1, 2021, by February of 2022, only five deputy commissioners had been appointed and the claims commissioner was awaiting another appointment.

According to the emails, Scott was unsure how to budget for the new deputy commissioners as she awaited more appointments.

“Brian, another deputy has been appointed and I’m told that a sixth one is coming later this week,” Scott wrote in a February 2022 email to Brian Saczawa at DAS. “If I recall correctly, we left some money aside. Is it enough for two more appointments? If not, can we use some from somewhere else in our budget or run a deficit for this project? I know this is a priority for the Governor’s office. Maybe I should be talking to them directly?”

However, hiring deputy commissioners may have been doubling down on powers already retained by the claims commissioner.

Since 2016, Scott had the authority to appoint magistrates to help with the caseload. Those magistrates can consider cases and render decisions – and they have — yet the backlog and extensions well past the statutory limit have remained.

Moving Forward?

According to the most recent 2021 report to the Department of Administrative Services, the Office of the Claims Commissioner received 414 new claims and disposed of or adjudicated 198.

While adding deputy commissioners may help ease some of the backlog, the 48 extensions approved by the legislature this year came with a caveat: the claims commissioner was given only 90 days to render a decision in each of them. Previously, extensions were open-ended.

“What had traditionally been done is the cases just keep getting kicked back to the claims commissioner that just gives her another period of time to deal with them and that’s been happening continuously for a lot of these cases, which is why this backlog has built up,” Savvaides said. “The other issue you have is the state is the one passing judgement on whether or not someone can sue the state.”

The legislature in 2021 also provided a “mechanism by which the Commissioner may grant permission to sue without holding an evidentiary hearing for certain claims and clarifies that permission to sue is deemed granted in medical malpractice claims once a legally sufficient goof faith certificate is filed,” according to Scott’s 2021 report to DAS.

During the 2022 legislative session, the General Assembly also passed a bill requiring more information to be presented in the claims commissioner’s report to the General Assembly, including, among other things, an explanation as to why claims more than 2 years old have not been disposed of and a date by which a decision will be rendered if the General Assembly grants an extension.

All of that may help get claims adjudicated more quickly, but for those who have been waiting years to find out if their claims can move forward, the continual waiting is damage that has already been done.

“The closure aspect is for these people to know whether sovereign immunity is going to apply,” Fishbein said. “In some of the other states, you don’t have the claims commissioner as a gatekeeper or something like that. They go to superior court, they file their action and then a judge determines whether sovereign immunity applies. Here, these people are not even allowed into the courthouse.”

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