Devine v. Fusaro

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MICHAEL DEVINE, ADMINISTRATOR (ESTATE

OF TIMOTHY DEVINE) v. LOUIS

FUSARO, JR., ET AL.*

(AC 42164)

Prescott, Cradle and DiPentima, Js.

Syllabus

The plaintiff administrator of the estate of the decedent, D, sought to recover

damages from the defendants, four police officers who were members

of a tactical unit of the state police, for the wrongful death of D following

his suicide after a standoff with law enforcement on certain public

property in Groton. The plaintiff’s complaint alleged that, in response

to a Groton police captain’s request for the assistance of the tactical

unit, the defendants arrived at the scene of the standoff and, after several

hours of unsuccessful negotiations with D, who was suicidal and armed

with a handgun, they used less than lethal ammunition on him. D then

shot himself in the head and died as a result of the gunshot. The trial

court granted the defendants’ motion to dismiss on the ground that the

action was barred by the doctrine of sovereign immunity. In reaching

its decision, the court determined that the wrongful death action, as

alleged in the complaint, satisfied the four criteria of the test set forth

in Spring v. Constantino (168 Conn. 563), and, therefore, it was brought

against the defendants in their official, rather than their individual,

capacities. On the plaintiff’s appeal to this court, this court affirmed the

trial court’s judgment. This court thereafter granted the plaintiff’s motion

for reconsideration to address his claim that the panel misapplied the

Spring test by giving too little weight to his express assertion in the

complaint that he had elected to sue the defendants in their individual

capacities. On reconsideration, held that the trial court improperly

granted the defendants’ motion to dismiss the plaintiff’s action on the

ground of sovereign immunity: the plaintiff unequivocally elected to sue

the defendants in their individual capacities, as the operative complaint

stated that the defendants were sued in their individual capacities and

three of the four defendants were served with process at their usual

place of abode, which was required to sue the defendants as individuals,

rather than through the Office of the Attorney General, which would

indicate that the defendants had been sued in their official capacities;

moreover, in concluding that the state was the real party in interest,

the court failed to give proper deference to the express allegation in the

complaint that the plaintiff was suing the defendants in their individual

capacities and improperly concluded that, because the challenged con-

duct occurred while the defendants were acting in their official capaci-

ties, the plaintiff was suing them in their official, rather than their

individual, capacities.

Argued November 17, 2020—officially released July 6, 2021

Procedural History

Action to recover damages for the wrongful death of

the plaintiff’s decedent as a result of the defendants’

alleged recklessness and gross negligence, brought to

the Superior Court in the judicial district of New Lon-

don, where the court, Knox, J., granted the defendants’

motion to dismiss and rendered judgment thereon, from

which the plaintiff appealed to this court, DiPentima,

C. J., and Keller and Norcott, Js., which affirmed the

trial court’s judgment; thereafter, this court granted the

plaintiff’s motion for reconsideration. Reversed; further

proceedings.

Trent A. LaLima, with whom, on the brief, was

Hubert J. Santos, for the appellant (plaintiff).

Clare E. Kindall, solicitor general, with whom were

Matthew B. Beizer, assistant attorney general, and, on

the brief, William Tong, attorney general, and Stephen

R. Finucane, assistant attorney general, for the appel-

lees (defendants).

Opinion

PRESCOTT, J. This appeal requires us to determine

whether the plaintiff in this wrongful death action seek-

ing to recover money damages has sued four state police

officers in their individual capacities or, conversely,

whether the action is barred by sovereign immunity

because the plaintiff has sued those officers only in

their official capacities. We conclude that the plaintiff’s

complaint, properly construed, alleges a claim for

money damages against the officers in their individual

capacities.

The plaintiff, Michael Devine, as the administrator of

the estate of the decedent, Timothy Devine (Devine),

appeals from the judgment of the trial court dismissing

on sovereign immunity grounds his wrongful death

action against the defendant police officers, Louis

Fusaro, Jr., Steven Reif, Michael Avery, and Kevin

Cook.1 On June 9, 2020, a panel of this court initially

affirmed the judgment of the trial court. Devine v.

Fusaro, 197 Conn. App. 872, 232 A.3d 1178 (2020). The

panel agreed with the trial court that the action was

barred by sovereign immunity because, after applying

the test set forth in Spring v. Constantino, 168 Conn.

563, 568, 362 A.2d 871 (1975) (Spring test), the com-

plaint should be construed as an action brought against

the defendants in their official capacities only and, thus,

against the state itself. Devine v. Fusaro, supra, 883.

The plaintiff subsequently filed a motion for reconsider-

ation en banc, in which he asserted, among other things,

that the panel misapplied the Spring test by giving far

too little weight to his express assertion in the com-

plaint that he had elected to sue the defendants in their

individual capacities.

The motion for reconsideration was granted by the

panel, which rendered action on the motion by the

full court unnecessary.2 Upon reconsideration, we now

conclude, for the reasons that follow, that the trial court

improperly dismissed the action on the ground that it

was barred by sovereign immunity. Accordingly, we

reverse the judgment of the trial court and remand for

further proceedings.

The following facts and procedural history are rele-

vant to the plaintiff’s claim. On November 28, 2017,

the plaintiff commenced the underlying wrongful death

action.3 The plaintiff filed the operative amended com-

plaint on January 12, 2018. That complaint contains a

single count directed against all of the defendants. In his

complaint, the plaintiff alleged the following relevant

facts: On the evening of July 23, 2012, Devine contacted

the Groton Police Department to inform the police that

he was contemplating suicide.4 Thereafter, Devine went

to the University of Connecticut’s Avery Point campus

in Groton armed with a handgun. Groton police officers

located Devine between 10 and 11 p.m. near the water.

Members of the Groton Police Department attempted to

negotiate with Devine. Negotiations were unsuccessful,

and a Groton Police Department captain requested

assistance from the state police tactical unit (tactical

unit). ‘‘At approximately 11:45 p.m., the [tactical unit]

including the defendants, arrived at the scene.’’ Law

enforcement officials continued to negotiate with

Devine for several hours, without success.

‘‘At 3:31 a.m. on July 24, 2012, [Fusaro] commanded

members of the tactical [unit] to begin using [less than

lethal] ammunition on Devine.’’ Avery and Cook com-

plied with Fusaro’s orders and struck Devine with less

than lethal ammunition. Rief subsequently ordered the

tactical unit to fire less than lethal ammunition at

Devine again. Avery and Cook complied with Rief’s

orders and struck Devine a second time. After the sec-

ond round of less than lethal ammunition, Devine raised

the handgun to his head and said to Rief, ‘‘Don’t make

me do this.’’ Devine then lowered the handgun to his

chest. Rief instructed the tactical unit to fire a third

round of less than lethal ammunition at Devine. Devine

was struck by less than lethal ammunition again. Devine

then raised the handgun to his head and shot himself

in the temple. Devine died as a result of the self-inflicted

gunshot.

The plaintiff alleged in the complaint that ‘‘[t]he

actions or omissions of the [d]efendants . . . were

committed intentionally, and/or with reckless indiffer-

ence to Devine’s safety and health and/or with gross

negligence . . . .’’5 The plaintiff further alleged that

‘‘[t]he intentional, reckless and grossly negligent actions

or omissions of the [d]efendants proximately caused’’

Devine’s death and caused damages to the plaintiff.

Finally, the plaintiff alleged that ‘‘[t]he defendants are

not entitled to qualified immunity for their actions.’’

On February 13, 2018, the defendants filed a motion

to dismiss and accompanying memorandum of law,

claiming that the trial court lacked subject matter juris-

diction over the plaintiff’s action because it was barred

by the doctrine of sovereign immunity or, alternatively,

that the defendants were statutorily immune from suit

pursuant to General Statutes § 4-165.6 On March 15,

2018, the plaintiff filed a memorandum of law opposing

the defendants’ motion to dismiss. The plaintiff also

filed additional pleadings including a request for leave

to amend the complaint to remove or amend certain

language in the operative complaint.7 The defendants

objected to the plaintiff’s attempts to amend or alter

the operative complaint, arguing that, because the

motion to dismiss challenged the court’s subject matter

jurisdiction, the court was not permitted to entertain

any amendments prior to an adjudication of the motion

to dismiss. The court sustained the defendants’ objec-

tions in its decision on the motion to dismiss.

On September 10, 2018, using the January 12, 2018

amended complaint as the operative complaint, the

court, Knox, J., issued an order granting the motion

to dismiss. In its memorandum of decision, the court

concluded that the factual allegations in the complaint

established that all four criteria of the test set forth

in Spring v. Constantino, supra, 168 Conn. 568, were

satisfied, and, therefore, that the court could only con-

strue the complaint as having been brought against

the defendants in their official, rather than individual,

capacities. In light of that conclusion, the court also

concluded that sovereign immunity shielded the defen-

dants from suit for money damages and deprived the

court of subject matter jurisdiction. Accordingly, it dis-

missed the action. In its memorandum of decision, the

court further stated that, ‘‘[b]ecause the court lacks

subject matter jurisdiction due to sovereign immunity,

the court does not reach the claim that the action is

barred by statutory immunity.’’ This appeal followed.

The plaintiff’s sole claim on appeal is that the trial

court improperly granted the defendants’ motion to dis-

miss because it misapplied or misconstrued the Spring

test, and, as a result, it improperly concluded that the

plaintiff’s action against the defendants was an action

against the state and barred by the doctrine of sovereign

immunity. In particular, the plaintiff argues that the

court failed to give due consideration to the plaintiff’s

clearly expressed intent to sue the defendants in their

individual capacities. The state argues in response that

the court properly concluded that the facts as alleged

in the complaint satisfied all four of the Spring test

criteria and, because no exception to sovereign immu-

nity applies, the court correctly dismissed the plaintiff’s

action for lack of jurisdiction. For the reasons that

follow, we agree with the plaintiff and, accordingly,

reverse the judgment of the trial court.

‘‘A motion to dismiss tests, inter alia, whether, on

the face of the record, the court is without jurisdiction.

. . . [O]ur review of the court’s ultimate legal conclu-

sion and resulting [determination] of the motion to dis-

miss will be de novo. . . . Moreover, [t]he doctrine of

sovereign immunity implicates subject matter jurisdic-

tion and is therefore a basis for granting a motion to

dismiss. . . . As we must in reviewing a motion to dis-

miss, we take the facts to be those alleged in the com-

plaint, including those facts necessarily implied from

the allegations, construing them in a manner most

favorable to the pleader.’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) Sullins v.

Rodriguez, 281 Conn. 128, 131–32, 913 A.2d 415 (2007).8

Although ‘‘the general principles governing sovereign

immunity are well established’’; Smith v. Rudolph, 330

Conn. 138, 143, 191 A.3d 992 (2018); courts have strug-

gled to apply those principles consistently and logi-

cally—particularly in cases in which the sovereign

immunity determination implicates concepts such as

individual versus official capacity liability and/or statu-

tory immunity. Accordingly, it is appropriate to consider

the broader legal landscape before turning to our dis-

cussion and application of the law to the facts of the

underlying case. Ultimately, we conclude that a court’s

application of the so-called Spring test is unnecessary

and ill-advised in a case such as the present one in

which the plaintiff has expressed a clear and unambigu-

ous choice in the operative complaint to sue a state

official in his or her individual capacity. In such cases,

the doctrine of sovereign immunity simply is not impli-

cated. Any immunity to be afforded to a state official

or employee sued in his or her individual capacity is

limited to the statutory and personal immunity afforded

under § 4-165. See Martin v. Brady, 261 Conn. 372, 374,

802 A.2d 814 (2002).9

‘‘[W]e have long recognized the validity of the com-

mon-law principle that the state cannot be sued without

its consent . . . .’’ (Internal quotation marks omitted.)

Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).

The doctrine of sovereign immunity ‘‘protects the state,

not only from ultimate liability for alleged wrongs, but

also from being required to litigate whether it is so

liable.’’ Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147

(2000), overruled in part by Miller v. Egan, 265 Conn.

301, 325, 828 A.2d 549 (2003). ‘‘[T]he practical and logi-

cal basis of the doctrine [of sovereign immunity] is

today recognized to rest . . . on the hazard that the

subjection of the state and federal governments to pri-

vate litigation might constitute a serious interference

with the performance of their functions and with their

control over their respective instrumentalities, funds,

and property. . . . Not only have we recognized the

state’s immunity as an entity, but [w]e have also recog-

nized that because the state can act only through its

officers and agents, a suit against a state officer con-

cerning a matter in which the officer represents the

state is, in effect, against the state. . . . Exceptions to

this doctrine are few and narrowly construed under our

jurisprudence.’’ (Citation omitted; internal quotation

marks omitted.) Markley v. Dept. of Public Utility Con-

trol, 301 Conn. 56, 65, 23 A.3d 668 (2011).

There are three recognized exceptions to the doctrine

of sovereign immunity: ‘‘(1) when the legislature, either

expressly or by force of a necessary implication, statu-

torily waives the state’s sovereign immunity . . . (2)

when an action seeks declaratory or injunctive relief

on the basis of a substantial claim that the state or one

of its officers has violated the plaintiff’s constitutional

rights . . . and (3) when an action seeks declaratory

or injunctive relief on the basis of a substantial allega-

tion of wrongful conduct to promote an illegal purpose

in excess of the officer’s statutory authority.’’ (Citations

omitted.) DaimlerChrysler Corp. v. Law, 284 Conn.

701, 720, 937 A.2d 675 (2007). By their terms, only the

first of these three exceptions applies in an action seek-

ing only monetary damages.10

Accordingly, if a plaintiff hopes to maintain an action

for monetary damages against the state itself, he may

do so only if such a suit is authorized pursuant to a

clearly expressed statutory waiver of sovereign immu-

nity or if the plaintiff first obtains a waiver from the

Claims Commissioner. See General Statutes § 4-160;11

Miller v. Egan, supra, 265 Conn. 317 (‘‘[a] plaintiff who

seeks to bring an action for monetary damages against

the state must first obtain authorization from the

[C]laims [C]ommissioner’’); see also Baker v. Ives, 162

Conn. 295, 298, 294 A.2d 290 (1972) (‘‘state is immune

from suit unless the state, by appropriate legislation,

consents to be sued’’ and ‘‘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’’ (internal

quotation marks omitted)).

Rather than suing the state directly, a plaintiff instead

may elect to sue a particular state official or employee.

If, however, the plaintiff sues that person only in his

or her official capacity as a representative of the state,

that suit will be construed as the equivalent of a suit

against the state itself and, without a valid waiver, the

suit likewise will be barred by sovereign immunity. See

Miller v. Egan, supra, 265 Conn. 313. To avoid a dis-

missal on sovereign immunity grounds, a plaintiff must

elect to sue the state official in his or her individual

capacity. By choosing to do so, however, the plaintiff

takes on additional pleading and proof requirements

needed to overcome a claim of statutory immunity

afforded to state officials and employees pursuant to

§ 4-165, namely, that the plaintiff plead and establish

some wanton, reckless, or malicious act. See footnote

6 of this opinion.

The policy interest underlying the legislature’s grant

of statutory immunity pursuant to § 4-165 is ‘‘the protec-

tion of state employees from liability for negligent acts

that occur in the course of employment.’’ Hunte v.

Blumenthal, 238 Conn. 146, 153, 680 A.2d 1231 (1996);

see also Spring v. Constantino, supra, 168 Conn. 571.

In Miller v. Egan, supra, 265 Conn. 319, the court stated

that § 4-165’s grant of ‘‘statutory immunity to state

employees has a twofold purpose. First, the legislature

sought to avoid placing a burden upon state employ-

ment. Second, § 4-165 makes clear that the remedy

available to plaintiffs who have suffered harm from the

negligent actions of a state employee who acted in the

scope of his or her employment must bring a claim

against the state ‘under the provisions of this chapter,’

namely, chapter 53 of the General Statutes, which gov-

erns the [O]ffice of the [C]laims [C]ommissioner.’’

(Footnote omitted.) The policy recognizes the reality

that people would be reluctant to take on the responsi-

bilities inherent in many state positions if they could

be held liable in the event that they acted negligently.

The statute strikes a balance by immunizing state offi-

cials and employees for negligent acts only. It does not

provide immunity for acts deemed wanton, reckless, or

malicious, presumably in order to deter those individu-

als from engaging in such seriously wrongful conduct.

Our Supreme Court has described the relationship

that exists between the common-law doctrine of sover-

eign immunity and the statutory immunity provided by

§ 4-165 in the following way: the former is ‘‘raise[d] as

a shield from the claims against [defendants] in their

official capacities’’ and the latter is ‘‘raise[d] as a shield

from the claims against [defendants] in their individual

capacities.’’ Shay v. Rossi, supra, 253 Conn. 162; see

also Mercer v. Strange, 96 Conn. App. 123, 128, 899 A.2d

683 (2006) (it is well settled that defense of sovereign

immunity is applicable only to claims brought directly

against state itself or against state employees acting in

official capacities, whereas defense of statutory immu-

nity is applicable to claims brought against state

employees acting in individual capacities).

Accordingly, a plaintiff who claims to have suffered

some compensable injury as a result of actions taken

by a state official or employee is faced with difficult

choices in electing to commence a legal action. Chief

among those choices is the decision whether to sue a

state official as an individual or in his or her official

capacity, each of which presents its own advantages

and disadvantages.12 Courts should not disregard these

choices if they are clearly expressed in the pleadings.

See Reclaimant Corp. v. Deutsch, 332 Conn. 590, 607

n.11, 211 A.3d 976 (2019) (‘‘[a]s the master of the com-

plaint, the plaintiff is free to decide what theory of

recovery to pursue’’); Miller v. Egan, supra, 265 Conn.

309 (agreeing that ‘‘the right of a plaintiff to recover is

limited by the allegations of [his] complaint’’ and warn-

ing courts not to ‘‘countenance a variance [from the

allegations of a complaint] which alters the basic nature

of a complainant’s cause of action’’ (internal quotation

marks omitted)).

A problem arises, however, whenever the plaintiff

names a state official or employee as a defendant in

an action without clearly designating whether the plain-

tiff is suing that person in his or her individual or official

capacity. Our Supreme Court has affirmed that the ‘‘test

set forth in Spring and Miller [v. Egan, supra, 265 Conn.

301] is an appropriate mechanism . . . to determine

the capacity in which the named defendants are sued

in actions asserting violations of state law . . . .’’ Sul-

lins v. Rodriguez, supra, 281 Conn. 136.

For the reasons that follow, we do not read the prece-

dent of our Supreme Court to require a court to apply

the Spring test if the complaint unequivocally states

the capacity in which the defendant is sued. Indeed,

closer examination of Spring and our Supreme Court’s

application of the Spring test in Miller reveals that the

test is not well suited for and was never expressly

intended to apply to instances in which a plaintiff has

made a clearly expressed election in the complaint to

sue a state official in his or her individual capacity. The

utility of the Spring test, at least as it has been applied

by our Supreme Court, is far narrower. Nevertheless,

even a cursory review of decisions of our trial and

appellate courts demonstrates that courts have con-

strued complaints as effectively having been brought

against the state even in the face of clear and contrary

indications in the complaint and elsewhere in the record

that the plaintiff has chosen to sue the defendant in

an individual capacity. Accordingly, we are concerned

that, if courts continue to apply the Spring test in such

an expansive manner, they risk misconstruing most

complaints brought against a state official or employee

for actions taken while in service of the state as an

action against that person only in his or her official

capacity and, thus, necessarily against the state.

We begin our analysis with a discussion of Spring

and Miller. In Spring, the plaintiff brought an action

for professional malpractice against a public defender

who had been assigned to represent her in a criminal

matter. Spring v. Constantino, supra, 168 Conn. 564.

The attorney general filed a special appearance on

behalf of the defendant and filed a motion to dismiss

the action, in which he claimed that the defendant had

immunity from suit. Id. The defendant advanced three

grounds for immunity: judicial immunity, common-law

sovereign immunity, and statutory immunity. Id., 564–

65. The trial court dismissed the action and the plaintiff

appealed.

In discussing sovereign immunity, our Supreme Court

in Spring indicated that the underlying action had been

brought against the defendant ‘‘in his personal capac-

ity,’’ but that it agreed with the attorney general’s asser-

tion, quoting from Somers v. Hill, 143 Conn. 476, 479,

123 A.2d 468 (1956), that ‘‘[t]he fact that the state is

not named as a defendant does not conclusively estab-

lish that the action is not within the principle which

prohibits actions against the sovereign without its con-

sent. . . . The vital test is to be found in the essential

nature and effect of the proceeding.’’ (Internal quotation

marks omitted.) Spring v. Constantino, supra, 168

Conn. 568. The Spring decision, however, omits the

sentence immediately preceding the quoted passage

from Somers. That sentence adds important context to

the stated rule: ‘‘Whether a particular action is one

against the state is not determined solely by referring

to the parties of record.’’ (Emphasis added.) Somers v.

Hill, supra, 479. Thus, the quoted passage from Somers,

considered in its full context, simply recognizes that a

plaintiff cannot avoid application of sovereign immunity

simply by naming a state official as the defendant rather

than the state directly. There is nothing in either the

Spring or Somers decision that elucidates the extent

to which this rule applies in suits expressly brought

against a state official in his or her individual, rather

than official, capacity.

The court in Spring set forth the following four crite-

ria, also taken from its earlier decision in Somers, ‘‘for

determining whether [an action] is, in effect, one against

the state and cannot be maintained without its consent:

(1) a state official has been sued; (2) the suit concerns

some matter in which that official represents the state;

(3) the state is the real party against whom relief is

sought; and (4) the judgment, though nominally against

the official, will operate to control the activities of the

state or subject it to liability.’’ (Internal quotation marks

omitted.) Spring v. Constantino, supra, 168 Conn. 568.

The court, however, provided no guidance on how the

individual criteria should be interpreted or applied, indi-

cating only that it was ‘‘questionable whether any of

these elements exist in the present action, but this need

not be decided because the first element—that a state

official has been sued—is not satisfied. A public

defender in representing an indigent [client] is not a

public official as that term has been defined by this

court.’’ Id. The court concluded: ‘‘The public defender

when he represents his client is not performing a sover-

eign function and is therefore not a public or state

official to whom the doctrine of sovereign immunity

applies.’’ Id., 569.

The decision in Spring, thus, was decided only on

the first criterion. The opinion is silent with respect to

the fact that the plaintiff expressly had sued the public

defender in his ‘‘personal capacity’’ or to what extent

that fact entered into the court’s dicta that questioned

whether any of the other criteria, including the third,

was met. Ultimately, the court in Spring concluded that

the public defender did not enjoy any of the immunities

advanced by the attorney general, and it reversed the

judgment of the court and remanded for further pro-

ceedings.13 Id., 576.

We turn next to our Supreme Court’s decision in

Miller v. Egan, supra, 265 Conn. 301, the only case in

which our Supreme Court has had occasion to apply

the Spring test. In Miller, a former county sheriff’s

office employee brought an action against the state

and against several sheriffs alleging defamation, false

imprisonment, civil conspiracy, and violations of his

civil rights. Id., 307. The complaint brought against the

sheriffs asserted claims against them in their official

capacities. Nevertheless, on appeal from the trial court’s

dismissal of his action on sovereign immunity grounds,

the plaintiff claimed that his complaint sued the sheriffs

‘‘in their individual capacities, as well as in their official

capacities.’’ Id. In support of his argument that he had

in fact sued the defendants in their individual capacities,

the plaintiff pointed to the fact that he had named each

of the sheriffs separately as a defendant in the complaint

along with the state. Id.

In addressing that claim, the Supreme Court first

stated: ‘‘If the plaintiff’s complaint reasonably may be

construed to bring claims against the defendants in

their individual capacities, then sovereign immunity

would not bar those claims.’’ (Emphasis added.) Id.,

citing Martin v. Brady, supra, 261 Conn. 374. Next,

the court indicated that resolution of whether a state

official was sued in an individual or official capacity,

however, did not turn on merely identifying a state

official as a party in the complaint, agreeing with the

defendants that the plaintiff had made repeated express

allegations in the complaint that he was suing the sher-

iffs in their official capacities. Miller v. Egan, supra, 265

Conn. 307–308. Noting that construction of a pleading is

a question of law, over which appellate courts exercise

plenary review; see Home Oil Co. v. Todd, 195 Conn.

333, 340, 487 A.2d 1095 (1985); the court next stated

that ‘‘[t]he determination of whether the plaintiff’s com-

plaint alleged claims against the defendants in their

individual capacities is governed by the [Spring test].’’

Miller v. Egan, supra, 308. The court noted that the

plaintiff conceded that the first two criteria of the

Spring test were met, but argued that ‘‘the third crite-

rion is not met because the complaint sought relief

both from the state and from the individual defendants.’’

(Emphasis added.) Id. Although the complaint before

the court in Miller named specific state officials as

parties, the complaint in Miller, unlike in the present

case, contained no express allegation by the plaintiff

that he sought to sue the state officials in their individual

capacities at the time the action was commenced. Nor

was that assertion made in response to the defendants’

motion to dismiss.

To the contrary, as Justice Borden emphasized in

Miller, ‘‘[n]owhere in the plaintiff’s complaint did he

allege that he was bringing an action against the defen-

dants in their individual capacities. Instead . . . the

complaint repeatedly alleged that the defendants acted

in their official capacity. We agree with the defendants

that the right of a plaintiff to recover is limited by the

allegations of [his] complaint . . . . We do not counte-

nance a variance [from the allegations of a complaint]

which alters the basic nature of a complainant’s cause

of action . . . .’’ (Emphasis added; internal quotation

marks omitted.) Id., 309.

In addition to the complaint, the court also consid-

ered other aspects of the record before it, stating: ‘‘The

plaintiff’s arguments to the trial court in opposition to

the motion to dismiss further support the conclusion

that the plaintiff had, until now, sought relief solely

from the state. The defendants’ motion to dismiss the

entire complaint was based on the doctrine of sovereign

immunity, which they argued deprived the court of sub-

ject matter jurisdiction and required the plaintiff to

exhaust his administrative remedies by proceeding

through the [O]ffice of the [C]laims [C]ommissioner.

The plaintiff could have responded, in his objection to

the motion to dismiss, that his complaint had brought

claims against the individual defendants, not only in

their official capacities, but also in their individual capa-

cities, and could have argued that sovereign immunity

was inapplicable to any individual capacity claims,

but he did not do so. Instead, the plaintiff argued that

the legislature had [statutorily] waived sovereign immu-

nity . . . and that he was not required, [under] § 4-165,

to exhaust his administrative remedies because he had

alleged in the complaint that the defendants’ actions

were reckless and malicious. The trial court’s memoran-

dum of decision specifically referenced the latter argu-

ment and concluded that it was inapplicable to the

present case because the plaintiff had asserted his

claims against the defendants solely in their official

capacities and sought relief solely from the state. The

plaintiff did not seek clarification or articulation based

on the trial court’s determination. . . . [T]he plaintiff

had multiple opportunities in the trial court to argue

that his complaint sought relief from the defendants in

their individual capacities, in addition to seeking relief

from the state, but he failed to do so.’’ (Citations omit-

ted; emphasis altered.) Id., 309–10.

Finally, the court in Miller stated: ‘‘We decline to

permit the plaintiff now, merely by making a conclusory

statement that he also sought relief against the individ-

ual defendants, to avoid dismissal of the complaint.

Otherwise, it would simply be too easy for a plaintiff,

who originally had alleged causes of action against a

state officer only in his official capacity, thus seeking

relief solely against the state, subsequently to claim that

he also sought relief against the state officer in his

individual capacity. By utilizing this tactic, a plaintiff

could, at least partially, avoid dismissal of a complaint

due to sovereign immunity and subject the unsuspecting

state officer to personal liability.’’ Id., 310.

Only after a thorough review of the complaint and

finding it utterly lacking any indication that the plaintiff

had attempted to sue the defendants in their individual

capacities, did the court conclude that the third crite-

rion of the Spring test had been met as to all counts.

Id., 311. With respect to the fourth criterion, the court

concluded that it was satisfied ‘‘because the complaint

sought relief solely against the state [and therefore] a

judgment against the state would subject it to liabil-

ity.’’ Id.14

At least one state trial court, relying on the analysis

in Miller, persuasively has held that the four part Spring

test has no applicability in the context of a case in

which the plaintiff’s complaint expressly provides that

state officials have been sued in their individual capaci-

ties. In Walsh v. State, Docket No. X03-CV-XX-XXXXXXX,

2006 WL 391306 (Conn. Super. February 1, 2006), the

administrators of the estate of a prisoner who had died

in his cell by hanging filed an action against a number

of state officials, expressly stating in the complaint that

they did so in their individual capacities. Although the

complaint primarily raised federal civil rights violations,

the officials nevertheless filed a motion to dismiss

claiming that all but one count was barred by common-

law sovereign immunity and state statutory immunity.

Id., *1–2. The defendants urged the court, despite clear

indication in the complaint that the defendants were

sued in their individual capacities, to apply the Spring

test and ‘‘look beneath the pleadings and conclude that

while the plaintiffs purport to sue [the] defendants in

their individual capacities, [the] defendants are in actu-

ality being sued in their capacities as state employees

discharging their statutory duties.’’ Id., *2. The plaintiff

responded, among other things, that the Spring test

was inapplicable, arguing in relevant part that the test

‘‘has only limited viability in light of the language used

by Justice Borden in [Miller] [that] [i]f the plaintiffs’

complaint reasonably may be construed to bring claims

against the defendants in their individual capacities,

then sovereign immunity would not bar these claims.’’

(Emphasis omitted; internal quotation marks omitted.)

Id., *3, citing Miller v. Egan, supra, 265 Conn. 307.15

Judge Lavine, at the time a Superior Court judge,

agreed with the plaintiff’s assertion. In discussing the

applicability of the Spring test, the court stated: ‘‘Even

if the state sovereign immunity defense were available,

the court concludes that it would not require dismissal

of the challenged counts in this case given the nature

of the allegations in the complaint. The court shares

[the] plaintiffs’ view that Justice Borden’s above-quoted

statement in Miller v. Egan, [supra, 265 Conn. 307] calls

into question the continuing vitality of the four part

test of Spring v. Constantino, [supra, 168 Conn. 563].16

Having reviewed the complaint, the court concludes

that it may reasonably be construed to bring claims

against the defendants in their individual capacities. In

fact, it does so explicitly and repeatedly. . . . In light

of these allegations, which the court must construe in

a manner most favorable to the pleader . . . the court

declines to construe the complaint as [the] defendants

suggest.’’ (Citations omitted; emphasis added; footnote

added; internal quotation marks omitted.) Walsh v.

State, supra, 2006 WL 391306, *4. In short, like in Miller,

Judge Lavine gave proper deference to the plaintiff’s

clear and unambiguous election, as expressed in the

complaint, to sue the defendants in their individual

capacities and refused to sanction the defendants’ effort

to undermine the plaintiff’s choice of defendant by

applying the Spring test, which the court determined

was inapplicable in light of the guidance in Miller.

With the foregoing legal background and discussion

in mind, we turn to the present case. The plaintiff, in

his operative complaint, asserted in the opening para-

graphs in which he identifies the parties to the action

that ‘‘[t]he defendants are sued in their individual capa-

cit[ies].’’ This statement represents an unequivocal elec-

tion on the part of the plaintiff regarding the legal theory

of liability that he intended to pursue.17 Unlike in Miller,

the plaintiff did not wait until his action was dismissed

on the ground of sovereign immunity to clearly assert

his intent to sue the defendants in their individual capa-

cities. Because there is only one reasonable construc-

tion of the plaintiff’s direct assertion that he sought to

sue the defendants in their individual capacities, pursu-

ant to Miller, ‘‘then sovereign immunity would not bar

these claims.’’ Miller v. Egan, supra, 265 Conn. 307. The

trial court appears not to have considered properly

this unequivocal statement in reaching its contradictory

conclusion, after application of the Spring test, that

the action had been brought against the defendants only

in their official capacities and, thus, by implication,

against the state.

Looking to other aspects of the record, as the court

did in Miller, we note that the manner in which the

action was commenced provides additional support for

construing the complaint as one brought against the

defendants in their individual capacities. Rather than

having served the defendants through the Office of the

Attorney General, which would have been expected in

an action brought against the defendants in their official

capacities, process was served on three of the four

defendants at their ‘‘usual place of abode’’ as required

to sue the defendants as individuals.18 It was incumbent

upon the court to construe the complaint, if possible,

in a manner consistent with the plaintiff’s choices as

the ‘‘master of the complaint’’; Reclaimant Corp. v.

Deutsch, supra, 332 Conn. 607 n.11; and in favor of

jurisdiction over the action. Consistent with our

Supreme Court’s statement in Miller, we conclude that

it was improper for the court to have treated the case

like one in which a plaintiff had sued a state official or

employee without designating whether he intended to

sue that person in his official or individual capacity. It

is only in the absence of an express designation by

the plaintiff in the complaint regarding the capacity in

which a state official or employee has been sued that

the Spring test offers any real utility.

Even if our Supreme Court were to disagree with our

construction of the true purpose of the Spring test, or

were to conclude that it was appropriate under the

circumstance for the trial court to have applied the

Spring test in this matter, particularly in light of the

fact that its application was advocated for by both sides,

we would nevertheless still disagree with the trial

court’s ultimate application of the test, particularly with

respect to the third criterion.

We agree with the court that the first two elements

of the Spring test are satisfied. With respect to the first

criterion, the plaintiff concedes, as he must, that at

all times relevant to this action, the defendant police

officers held positions as state officials. By citing the

officers as the defendants in his complaint, it is undis-

puted that ‘‘a state official has been sued’’ and, there-

fore, the first criterion of the Spring test is met. See

Spring v. Constantino, supra, 168 Conn. 568.

With regard to the second criterion, namely, that ‘‘the

suit concerns some matter in which that official repre-

sents the state’’; id.; it is equally indisputable that the

present action concerns a matter in which the defen-

dants are alleged to have been acting while on duty as

police officers and, thus, representing the state.

Although the plaintiff argues that the defendants’ use

of less than lethal ammunition on Devine was conduct

that went beyond the scope of their duties as police

officers and, thus, should be characterized as an assault,

the facts as alleged in the amended complaint in no

way indicate that the defendants were acting other than

in their capacities as police officers. Rather, the com-

plaint alleges that the defendants all responded to the

scene as members of the tactical unit and that Avery and

Cook fired the less than lethal ammunition at Devine

in response to direct orders given by Fusaro and Rief,

acting in their command roles. The complaint contains

no allegations suggesting that any of the defendants

ever ceased to act pursuant to their roles as state

employees, and, therefore, the second criterion of the

Spring test is met.19 See Cimmino v. Marcoccia, 149

Conn. App. 350, 359, 89 A.3d 384 (2014) (second crite-

rion of Spring test was met because defendants were

allegedly ‘‘acting in furtherance of a joint investigation

authorized by statute and initiated by the state agencies

that employed them’’); Kenney v. Weaving, 123 Conn.

App. 211, 216, 1 A.3d 1083 (2010) (second criterion was

met because ‘‘[t]he allegedly reckless actions of the

defendant were related to his duties as commissioner’’).

We do not agree, however, with the trial court’s appli-

cation of the third criterion, which asks whether ‘‘the

state is the real party against whom relief is sought.’’

Spring v. Constantino, supra, 168 Conn. 568. As we

have already discussed, the court failed to give proper

deference to the express allegation in the plaintiff’s

complaint that he sought relief from the officers in

their individual capacities. In concluding to the con-

trary that the state was the real party in interest, the

trial court stated that ‘‘[t]he plaintiff’s claims arise from

the injuries allegedly caused by the defendants’ conduct

that occurred during and as part of their official duties

as state employees’’ and thus it followed that ‘‘they

acted in their official capacities, implicating the state.’’

Given that the purpose of the Spring test is to determine

whether the defendants were sued in their official or

individual capacities, to conclude that the third prong

of that test is met on the basis of a determination that

the defendants acted in their official capacities is circu-

lar logic.

We acknowledge that courts, including this one, have,

on occasion, concluded that the state is the real party

in interest solely because the injuries alleged were the

result of the actions by an individual taken during the

performance of his or her official state duties. See, e.g.,

Cimmino v. Marcoccia, supra, 149 Conn. App. 359–60;

Macellaio v. Newington Police Dept., 142 Conn. App.

177, 181, 64 A.3d 348 (2013). In so concluding, those

courts have employed language similar to that used by

the trial court in the present case. The use of such

language, however, risks obscuring the true purpose

of the Spring test—determining in the absence of an

expressed intent whether a state official has been sued

in his or her official or individual capacity—and conflat-

ing the second criterion of the Spring test with the

third criterion thereby suggesting, through implication,

that anytime a state employee or official is sued for

actions conducted while carrying out official duties, the

state itself, rather than the official, necessarily must be

the real party in interest.

By way of example, in Macellaio v. Newington Police

Dept., supra, 142 Conn. App. 181, this court stated that

‘‘[t]he third criterion of [the Spring test] [was] met

because damages [were] sought for injuries allegedly

caused by the [employee] for performing acts that

[were] a part of his official duties such that the state

is the real party against whom relief is sought.’’ In Cim-

mino v. Marcoccia, supra, 149 Conn. App. 359–60, this

court similarly held that the third criterion of the Spring

test was satisfied because the ‘‘damages sought by the

plaintiff [were] premised entirely on injuries alleged to

have been caused by the [employees] in performing

acts that were part of their official duties.’’ If the quoted

language continues to be employed as supporting the

conflated rationale that we have identified, a plaintiff

seeking to sue a state official on a theory of individual

liability would almost always be precluded from doing

so because of sovereign immunity because the actions

of the state official always would be attributed to the

state, even if the actions were alleged to be reckless,

wanton, or malicious in nature.20

Importantly, applying the Spring test so broadly also

risks undermining the legislature’s purpose for enacting

§ 4-165, which was to protect state officials and employ-

ees from liability for negligent acts while performing

official duties. If all acts taken by a state official or

employee while in service of the state are automatically

construed as actions taken in his or her official capacity

attributable to the state, liability for those acts would

be barred by sovereign immunity, rendering the need

for statutory immunity pursuant to § 4-165 superfluous

and unnecessary. See, e.g., Kenney v. Weaving, supra,

123 Conn. App. 219 n.5 (determining on basis of Spring

test that defendant was entitled to defense of sovereign

immunity ‘‘and, therefore, the plaintiff cannot maintain

her cause of action against him regardless of whether

she could demonstrate recklessness pursuant to § 4-

165’’). If a suit seeking damages from state officials

carrying out their duties as agents of the state always

will be determined to be a suit against the state, thereby

implicating sovereign immunity, there would never be

a real need for § 4-165. It is axiomatic that ‘‘[n]o part

of a legislative enactment is to be treated as insignificant

or unnecessary, and there is a presumption of purpose

behind every sentence, clause or phrase . . . [so that]

no word [or phrase] in a statute is to be treated as

superfluous.’’ (Internal quotation marks omitted.) State

v. Peeler, 271 Conn. 338, 434–35, 857 A.2d 808 (2004),

cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d

110 (2005).

Consequently, we agree with the plaintiff’s argument

that, in considering whom the action was brought

against—i.e., the real party in interest—the court was

required to give far greater weight to the fact that the

plaintiff specifically pleaded that he brought the action

against the defendants in their individual capacities.

This is not a case in which a state official has been

named as a defendant without any indication of whether

that person is being sued in an individual capacity or

only in an official capacity as an agent of the state. As

the plaintiff correctly points out, he specifically and

clearly pleaded claims against the defendants in their

individual capacities.21 Although, as we have already

noted, the complaint also states that the defendants

‘‘[were] employed as law . . . enforcement officer[s]

by the state of Connecticut and acting under the color

of law,’’ nowhere in the complaint does the plaintiff

indicate by express language that his intent was to sue

the defendants in their official capacities, and therefore

we are unconvinced that this language alone is suffi-

cient to negate the express allegation to the contrary.

See footnote 17 of this opinion. Having determined that

the third criterion is not met, it is unnecessary to reach

whether the fourth criterion of the Spring test would

be satisfied under the facts alleged.22

To summarize, because we have determined that the

plaintiff’s wrongful death action was brought against

the defendants in their individual capacities, we con-

clude that the trial court improperly granted the motion

to dismiss on sovereign immunity grounds.23 Accord-

ingly, we reverse the judgment and remand the matter

to the court with direction that it vacate its granting of

the motion to dismiss and that it consider the remaining

ground raised in the motion, namely, whether the plain-

tiff’s complaint sufficiently alleges reckless, wanton, or

malicious conduct such that, if proven, the defendants

would not be entitled to statutory immunity under

§ 4-165.24

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opin-

ion.

In this opinion the other judges concurred.

* This opinion supersedes the opinion of this court in Devine v. Fusaro,

197 Conn. App. 872, 232 A.3d 1178 (2020).

1

Prior to filing the underlying action, the plaintiff brought a federal civil

rights action in federal court against the same officers in which he also

raised his state law claims. See Estate of Devine v. Fusaro, Docket No. 3:14-

cv-01019 (JAM), 2016 WL 183472 (D. Conn. January 14, 2016). On January

14, 2016, the District Court granted the defendants’ motion for summary

judgment on the federal claims on the basis of qualified immunity. Id., *1.

The District Court also declined to exercise supplemental jurisdiction over

the remaining state law claims and dismissed them without prejudice. Id.,

*9. On January 23, 2017, the United States Court of Appeals for the Second

Circuit affirmed the District Court’s judgment. See Estate of Devine v.

Fusaro, 676 Fed. Appx. 61, 64–65 (2d Cir. 2017).

Additionally, in July, 2013, the plaintiff filed a notice of claim with the

state Office of the Claims Commissioner, in which he sought a waiver of

the state’s sovereign immunity to allow him to bring an action against the

state for negligence. The plaintiff, however, in response to a motion to

dismiss filed by the state, withdrew the notice of claim in December, 2014.

The present action followed.

2

Due to the unavailability of some members of the original panel, reargu-

ment was heard by the present panel with no objection by the parties. In

addition to granting reconsideration, this court ordered the parties sua

sponte to file supplemental briefs addressing whether ‘‘[f]or the purposes

of deciding a motion to dismiss, does the test in Spring v. Constantino,

[supra, 168 Conn. 563], for assessing whether a state employee has been

sued in his individual or official capacity apply in light of Martin v. Brady,

261 Conn. 372, [802 A.2d 814] (2002).’’

3

With respect to Fusaro, Reif, and Avery, the marshal’s return to court

indicates that service of process was made by abode service. Service on

Cook was made in hand to a state trooper at the Connecticut State Police

Headquarters in Middletown, who, according to the return, was authorized

to accept legal service for Cook. ‘‘Pursuant to [General Statutes] § 52-57

(a), a defendant in any civil action must be served in hand or at his usual

place of abode. This requirement includes civil suits brought against state

defendants who are sued in their individual capacities. . . . [By way of

example], a plaintiff who serves a state defendant pursuant to [General

Statutes] § 52-64 (a) by leaving a copy of the process at the Office of the

Attorney General has properly served the defendant only in his or her official

capacity and has failed to properly serve the defendant in his or her individual

capacity.’’ (Internal quotation marks omitted.) Jan G. v. Semple, 202 Conn.

App. 202, 220, 244 A.3d 644, cert. denied, 336 Conn. 937, 249 A.3d 38 (2021).

Although only three of the four defendants appear to have been served ‘‘at

his usual place of abode,’’ any claim that the court lacked personal jurisdic-

tion over the defendants in their individual capacities on the basis of

improper service of process or otherwise has been waived by the defendants

as a result of their failure timely to file a motion to dismiss on that basis with

the trial court. See Practice Book §§ 10-30 and 10-32; Pitchell v. Hartford,

247 Conn. 422, 433, 722 A.2d 797 (1999).

4

In its decision in the federal court action brought pursuant to 42 U.S.C.

§ 1983, the District Court indicated that the record before it established that

a detective from the Groton Police Department had contacted Devine earlier

that day and ‘‘told him that she wished to discuss allegations of serious and

scandalous criminal misconduct that had been made against Devine. At first,

Devine agreed to come [to the police department] but [soon after] called

[the detective] back to say that he would not meet with [her]. He told the

detective that he had his [handgun] on his lap and was pulling the hammer

back and that ‘if a single person walks up on me, I will put a round through

my head.’ ’’ Estate of Devine v. Fusaro, Docket No. 3:14-cv-01019 (JAM),

2016 WL 183472, *1 (D. Conn. January 14, 2016); see also footnote 1 of

this opinion.

5

The plaintiff alleged that the acts or omissions of the defendant that

supported his claim of ‘‘wrongful death due to recklessness or gross negli-

gence’’ consisted of but were not limited to (1) ‘‘[u]nnecessarily exacerbating

tensions in the confrontation,’’ (2) ‘‘[f]ailing to appropriately respond to

an individual in a mental illness crisis,’’ (3) ‘‘[u]nreasonably, excessively

assaulting Devine with less-lethal ammunition,’’ (4) ‘‘[c]ontinuing to exacer-

bate tensions and assault Devine, increasing the chances for violence,’’ and

(5) ‘‘fail[ing] to stand down after responding to the scene.’’

6

General Statutes § 4-165 (a) provides: ‘‘No state officer or employee shall

be personally liable for damage or injury, not wanton, reckless or malicious,

caused in the discharge of his duties or within the scope of his or her

employment. Any person having a complaint for such damage or injury shall

present it as a claim against the state under the provisions of this chapter.’’

(Emphasis added.)

7

Specifically, the plaintiff sought to correct addresses attributed to the

defendants in the complaint which differed from the addresses at which

process was served as reflected in the return of service. The plaintiff also

sought to eliminate language that referred to the defendants as police officers

who were acting ‘‘under color of law.’’ The plaintiff also filed a partial

withdrawal seeking to withdraw this language from the complaint. According

to the plaintiff, the ‘‘under color of law’’ language mistakenly was transferred

from the allegations in the defunct federal lawsuit, in which it was necessary

to show that the officers had acted ‘‘under color of law’’ to establish their

liability under 42 U.S.C. § 1983. See Adickes v. S. H. Kress & Co., 398 U.S.

144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

8

This is, of course, the standard that applies when, as in the present case,

‘‘a trial court decides a jurisdictional question raised by a pretrial motion

to dismiss on the basis of the complaint alone . . . .’’ Conboy v. State,

292 Conn. 642, 651, 974 A.2d 669 (2009). If, however, ‘‘the complaint is

supplemented by undisputed facts established by affidavits submitted in

support of the motion to dismiss . . . [or] other types of undisputed evi-

dence . . . the trial court, in determining the jurisdictional issue, may con-

sider these supplementary undisputed facts and need not conclusively pre-

sume the validity of the allegations of the complaint. . . . Rather, those

allegations are tempered by the light shed on them by the [supplementary

undisputed facts]. . . . If affidavits and/or other evidence submitted in sup-

port of a defendant’s motion to dismiss conclusively establish that jurisdic-

tion is lacking, and the plaintiff fails to undermine this conclusion with

counteraffidavits . . . or other evidence, the trial court may dismiss the

action without further proceedings. . . . If, however, the defendant submits

either no proof to rebut the plaintiff’s jurisdictional allegations . . . or only

evidence that fails to call those allegations into question . . . the plaintiff

need not supply counteraffidavits or other evidence to support the complaint,

but may rest on the jurisdictional allegations therein. . . .

‘‘Finally, where a jurisdictional determination is dependent on the resolu-

tion of a critical factual dispute, it cannot be decided on a motion to dismiss

in the absence of an evidentiary hearing to establish jurisdictional facts.

. . . Likewise, if the question of jurisdiction is intertwined with the merits

of the case, a court cannot resolve the jurisdictional question without a

hearing to evaluate those merits. . . . An evidentiary hearing is necessary

because a court cannot make a critical factual [jurisdictional] finding based

on memoranda and documents submitted by the parties.’’ (Citations omitted;

emphasis omitted; footnotes omitted; internal quotation marks omitted.)

Id., 651–54.

9

Martin was a certified appeal from a decision of this court; Martin v.

Brady, 64 Conn. App. 433, 780 A.2d 961 (2001); in which we had affirmed

the trial court’s dismissal of an action brought against several state police

officers on sovereign immunity grounds. Martin v. Brady, supra, 261 Conn.

374. The certified issues were ‘‘[w]hether the Appellate Court properly con-

cluded that Binette v. Sabo, [244 Conn. 23, 710 A.2d 688 (1998)], does not

permit the plaintiff’s tort action because (1) the defendants are protected

by the doctrine of sovereign immunity and (2) the facts are not sufficiently

egregious?’’ Martin v. Brady, 258 Conn. 919, 782 A.2d 1244 (2001). Although

the defendants fully briefed the certified questions, at oral argument they

conceded that, construing the complaint properly, the plaintiff had sued

them in their individual, rather than their official, capacities and, therefore,

sovereign immunity was not really at issue. Rather, ‘‘the only jurisdictional

question remaining was whether [the defendants] were protected by the

statutory, personal immunity provided by § 4-165.’’ Martin v. Brady, supra,

261 Conn. 374. The Supreme Court agreed that the defendants were statuto-

rily immune from suit, and they affirmed this court’s judgment on that

alternative ground. Id. Although the Supreme Court in Martin did not discuss

the Spring test or sovereign immunity, the procedural posture of that appeal

helps illustrate the point we seek to make in the present case: namely, if a

plaintiff elects to sue a state official in his or her individual capacity and

makes that choice clear in the operative complaint, sovereign immunity

cannot properly act as a bar to the action; rather, the issue becomes one

of statutory immunity only.

10

The second and third exceptions, by their terms, are applicable only in

those actions seeking declaratory or injunctive relief. In such an action, the

complaint must contain sufficient factual allegations that, if proven, would

support a finding that a state official or employee has acted unconstitution-

ally or in excess of statutory authority to avoid dismissal on sovereign

immunity grounds. See Markley v. Dept. of Public Utility Control, supra,

301 Conn. 66. The rationale behind these exceptions is that, ‘‘[i]n those

cases in which it is alleged that the defendant officer is proceeding under

an unconstitutional statute or in excess of his statutory authority, the interest

in the protection of the plaintiff’s right to be free from the consequences

of such action outweighs the interest served by the sovereign immunity

doctrine. Moreover, the government cannot justifiably claim interference

with its functions when the acts complained of are unconstitutional or

unauthorized by statute.’’ (Internal quotation marks omitted.) Id., 66 n.11.

11

General Statutes § 4-160 (a) provides in relevant part: ‘‘Whenever the

Claims Commissioner deems it just and equitable, the Claims Commissioner

may authorize suit against the state on any claim which, in the opinion of

the Claims Commissioner, presents an issue of law or fact under which the

state, were it a private person, could be liable. . . .’’

12

For example, whereas the state ordinarily may represent a potential

‘‘deep pocket’’ for the payment of damages, it may be legally difficult, time

consuming, and ultimately fruitless to seek a waiver of sovereign immunity

from the Claims Commissioner if one is not clearly provided for by statute.

Conversely, although the difficulties associated with overcoming the hurdle

of sovereign immunity theoretically may be avoided by suing a state official

or employee in his or her individual capacity, the trade-off requires the

plaintiff to allege and ultimately prove far more than merely negligent con-

duct on the part of the official, but rather some wanton, reckless, or malicious

act. Otherwise, the plaintiff risks dismissal of the action on statutory immu-

nity grounds. See General Statutes § 4-165.

13

We note that the legislature has since added public defenders to the

definition of ‘‘state officers and employees’’ entitled to statutory immunity

under § 4-165. See General Statutes § 4-141 (5) (B); Gross v. Rell, 304 Conn.

234, 248 n.7, 40 A.3d 240 (2012).

14

The court also rejected the plaintiff’s argument that, even if sued only

in their official capacities, the defendants had acted ‘‘in excess of their

statutory authority’’ and thus the matter fell within an exception to the

sovereign immunity doctrine. Miller v. Egan, supra, 265 Conn. 312. The

court determined that the exception was inapplicable because it was limited

to actions seeking declaratory or injunctive relief and did not extend to

actions that sought money damages, as did the plaintiff’s action. Id., 312–13.

In so holding, the court expressly overruled its prior decisions in Shay v.

Rossi, supra, 253 Conn. 134, and Antinerella v. Rioux, 229 Conn. 479, 642

A.2d 699 (1994), to the extent that those decisions had held that sovereign

immunity did not bar monetary damage actions against state officials in their

official capacities if they allegedly had acted in excess of statutory authority.

15

Federal trial courts have also recognized this same principle. See, e.g.,

Longmoor v. Nilsen, 285 F. Supp. 2d 132, 143 (D. Conn. 2003) (citing Miller for

proposition that, if plaintiff sued state police officers only in their individual

capacities, defendants are not protected by common-law doctrine of sover-

eign immunity).

16

We construe Judge Lavine’s statement as questioning only the applicabil-

ity of the Spring test with respect to cases in which the plaintiff clearly

and unambiguously has expressed an intent to sue a state official in his or

her individual capacity, not, more generally, cases in which it is unclear as

to the plaintiff’s election regarding the capacity in which the state official

has been sued.

17

We recognize that this court, on occasion, has stated that trial courts

are not required to accept as wholly determinative a plaintiff’s allegation

that an individual rather than the state is the real party in interest. See

Cimmino v. Marcoccia, 149 Conn. App. 350, 359, 89 A.3d 384 (2014); Kenney

v. Weaving, 123 Conn. App. 211, 215–16, 1 A.3d 1083 (2010). We are mindful,

however, that we are bound to follow our Supreme Court’s language in

Miller requiring a court to defer to the plaintiff’s election if the complaint

reasonably can be construed to bring an action against a state official in

an individual capacity. See Max’s Place, LLC v. DJS Realty, LLC, 123 Conn.

App. 408, 415, 1 A.3d 1199 (2010) (‘‘[a]s an intermediate appellate court, we

must follow the precedent of our Supreme Court along the path which our

considered reading of that precedent lays out for us’’ (internal quotation

marks omitted)).

18

Service of process for the fourth defendant, Cook, was made by in hand

service to an individual alleged to be authorized to accept legal service for

Cook. The question of whether, if challenged, this would have been deemed

insufficient to bring Cook within the jurisdiction of the court in his individual

capacity has been waived. See footnote 3 of this opinion. Nonetheless, it is

noteworthy that the plaintiff did not seek to serve Cook through the attorney

general as he would have if he wished to sue Cook only in his official

capacity. See General Statutes § 52-64 (a) (‘‘Service of civil process in any

civil action . . . against any officer, servant, agent or employee of the state

. . . may be made by a proper officer (1) leaving a true and attested copy

of the process, including the declaration or complaint, with the Attorney

General at the office of the Attorney General in Hartford, or (2) sending a

true and attested copy of the process, including the summons and complaint,

by certified mail, return receipt requested, to the Attorney General at the

office of the Attorney General in Hartford’’); see also Harnage v. Lightner,

163 Conn. App. 337, 341, 137 A.3d 10 (2016) (it is ‘‘clearly established that

§ 52-64 (a) applies only if a state employee has been sued in his official

capacity and that § 52-57 (a) applies when a state employee is sued in his

individual capacity’’), aff’d in part, vacated in part, 328 Conn. 248, 179 A.3d

212 (2018).

19

Although the plaintiff argues that the court, in determining that the

second criterion of the Spring test was met, impermissibly relied entirely

on the language in the complaint alleging that the defendants were ‘‘acting

under color of law’’—language the plaintiff had sought to remove or amend—

the plaintiff misinterprets the court’s analysis. The court did state that the

allegations that the defendants were acting under the color of law ‘‘suffi-

ciently show that the individual defendants represent the state.’’ The court

further stated, however, that, ‘‘[a]lthough this is sufficient to satisfy the

second criterion, there is a separate bas[is] to do so.’’ (Emphasis added.)

The court explained: ‘‘The additional factual allegations all concern the

defendants acting in their official police functions. The plaintiff alleges that

the [Groton police captain] requested the presence of the [tactical unit] and

the four defendants responded to the scene as members of and a part of

the [tactical unit].’’ (Emphasis omitted.) We, therefore, reject the plaintiff’s

argument that the court’s analysis improperly was limited to the ‘‘color of

law’’ allegations.

20

This opinion should not be read as overruling sub silencio any previous

Appellate Court decisions because, as a matter of policy, one panel of this

court will not overrule another panel’s decision in the absence of en banc

consideration. See McCullough v. Rocky Hill, 198 Conn. App. 703, 712 n.13,

234 A.3d 1049, cert. denied, 335 Conn. 985, 242 A.3d 480 (2020). We invite

our Supreme Court, if provided an appropriate opportunity, to discuss more

fully and definitively the proper application of the Spring test criteria or

to reformulate the Spring test, something it has not yet had an opportunity

to consider.

21

In Visual Displays, Inc. v. Fields, Docket No. Civ. 3:93-837 (JAC), 1993

WL 366532 (D. Conn. August 24, 1993), a federal District Court judge, applying

the Spring test, held that the third prong of the test was not met because

the plaintiffs had expressly stated in their complaint that ‘‘all the defendants

are sued in their individual capacities’’; id., *4 n.26; and, because the plaintiffs

‘‘have sued the defendants solely in their individual—not their official—

capacities’’; id., *5; it follows that ‘‘the state is not the real party in interest

. . . .’’ Id.

22

We nonetheless take this opportunity to caution courts to avoid constru-

ing the fourth criterion too expansively such that almost every suit nominally

brought against a state employee, even if the relief sought is limited to

money damages against the individual, will be deemed to ‘‘operate to control

the activities of the state or subject it to liability.’’ Spring v. Constantino,

supra, 168 Conn. 568.

In considering the state’s possible liability under the fourth criterion,

courts routinely have looked to General Statutes § 5-141d (a) to determine

whether the state is obligated to indemnify state officials or employees if

judgment were rendered against them in favor of the plaintiff. ‘‘Section 5-

141d . . . evinces the legislature’s intent that the state indemnify and defend

any officer or employee sued for negligent conduct occurring in the course

of his or her employment.’’ Hunte v. Blumenthal, supra, 238 Conn. 151. If,

however, a plaintiff alleges wanton, reckless, or malicious conduct by the

state official or employee, the attorney general has discretion whether to

defend that person and the state will not legally be required to indemnify

him or her if those allegations are proven, meaning that any monetary relief

sought by the plaintiff would not necessarily subject the state to liability.

See, e.g., David v. Bureau, Docket No. CV-XX-XXXXXXX-S, 2008 WL 4249406,

*3 (Conn. Super. August 25, 2008); Flanagan v. Blumenthal, Docket No. 00-

7307, 2000 WL 1508874, *1 (2d Cir. October 12, 2000) (§ 5-141d grants attorney

general broad discretion to deny representation ‘‘if providing it would be

‘inappropriate’ ’’). Moreover, the fourth criterion of the Spring test, which

is stated in the disjunctive, looks not only to whether a judgment against

the defendant would ‘‘subject [the state] to liability’’ but also to whether a

judgment would ‘‘operate to control the activities of the state . . . .’’ Spring

v. Constantino, supra, 168 Conn. 568. This latter portion of the fourth

criterion, if applied with too broad a brush, has the potential, like the third

criterion, to render it established in almost every case. See, e.g., Cimmino

v. Marcoccia, supra, 149 Conn. App. 360 (holding that ‘‘[a]ny [monetary]

judgment against the defendants would impact the manner in which state

officials conduct investigations’’ initiated by state child advocate and attor-

ney general). We nevertheless leave a more detailed discussion of the fourth

criterion for another day. See footnote 20 of this opinion.

23

The state argues that, even if we determine that the court improperly

granted the motion to dismiss on sovereign immunity grounds, we may

affirm the trial court’s decision to dismiss the action on the alternative

theory, raised in the motion to dismiss but not decided by the trial court,

that the action is barred by statutory immunity because the plaintiff failed

to allege sufficient facts to demonstrate that the defendants’ actions were

‘‘wanton, reckless or malicious.’’ For the following reasons, we decline to

exercise our discretion to consider the alternative ground advanced by

the state.

Practice Book § 63-4 (a) (1) (A) provides in relevant part that, ‘‘[i]f any

appellee wishes to . . . present for review alternative grounds upon which

the judgment may be affirmed . . . that appellee shall file a preliminary

statement of issues within twenty days from the filing of the appellant’s

preliminary statement of the issues.’’ Certainly, ‘‘[t]his court is not precluded

. . . from reviewing an [alternative] ground that was not raised in accor-

dance with [our rules of practice] so long as the appellant will not be

prejudiced by consideration of that ground for affirmance.’’ (Emphasis

added; internal quotation marks omitted.) State v. Martin M., 143 Conn.

App. 140, 151, 70 A.3d 135, cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).

Nonetheless, we also may decline to do so under certain circumstances.

See, e.g., Vertex, Inc. v. Waterbury, 278 Conn. 557, 563 n.7, 898 A.2d 178

(2006). In the present case, the defendants never filed a preliminary state-

ment of issues raising statutory immunity as a potential alternative ground

for affirmance. The defendants also failed to identify or brief statutory

immunity as an alternative ground for affirmance in their appellees’ brief,

which would have alerted the plaintiff to that issue and provided him with

an opportunity to address the defendants’ arguments in a reply brief. The

defendants raised the issue of statutory immunity as an alternative ground

for affirmance for the first time during oral argument following the granting

of reargument. Although the plaintiff—and not the defendants—addressed

statutory immunity in the simultaneous supplemental briefs ordered by this

court on reargument, he had no real notice or opportunity to respond to

the arguments raised by the defendants, which were advanced for the first

time at oral argument. Under these unique circumstances, and given that

the trial court never had an opportunity to rule on the issue of statutory

immunity, we decline to do so for the first time on appeal.

24

Because we reverse the court’s decision granting the motion to dismiss,

we need not address the plaintiff’s additional claim that, in granting the

motion to dismiss, the court considered facts outside the complaint, namely,

the Connecticut State Police Administration and Operations Manual.