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Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
PAVONIX (MASSACHUSETTS), INC. v. STATE
OF CONNECTICUT, JUDICIAL BRANCH
(AC 48506)
Moll, Wilson and Harper, Js.
Syllabus
The plaintiff appealed from the trial court’s judgment denying its motion to compel arbitration and to stay litigation and granting the defendant’s motion to permanently enjoin arbitration. The plaintiff claimed that the court improperly determined that, notwithstanding the permission the plaintiff had received from the claims commissioner to bring an action against the defendant, sovereign immunity barred the plaintiff from pursuing its claims against the defendant by way of private arbitration rather than by way of litigation in the Superior Court. Held:
This court concluded that it had subject matter jurisdiction to consider all of the plaintiff’s claims on appeal directed to the trial court’s order simultaneously denying its motion to compel arbitration and to stay litigation and granting the defendant’s motion to permanently enjoin arbitration, as the granting of a permanent injunction constitutes an appealable final judgment and the court’s rulings on both motions were inextricably intertwined, the motions having been based on the same facts and the court having addressed the motions together and relied on the same rationale to deny the plaintiff’s motion and to grant the defendant’s motion.
The trial court properly determined that the doctrine of sovereign immunity barred arbitration in this case, as the plain and unambiguous language of the statute (§ 4-160) under which the plaintiff received permission from the claims commissioner to sue the state does not authorize a waiver of the state’s sovereign immunity from private arbitration and this court could not, by judicial construction, read into statutes provisions that were not clearly stated.
Argued February 10—officially released August 25, 2026
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior Court in the judicial district of Hartford, where
the plaintiff filed a motion to compel arbitration and
to stay litigation; thereafter, the defendant filed
a motion for an order permanently enjoining arbitration; subsequently, the court, Klau, J., rendered
judgment granting the defendant’s motion for an order
permanently enjoining arbitration and denying the
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
plaintiff’s motion to compel arbitration and to stay litigation, from which the plaintiff appealed to this court;
thereafter, this court denied the defendant’s motion to
dismiss this appeal. Affirmed.
Benjamin B. Watson, pro hac vice, with whom were
Kenneth J. Krayeske and, on the brief, Jonathan R.
Chally, pro hac vice, and Katherine L. D’Ambrosio, pro
hac vice, for the appellant (plaintiff).
Thadius Bochain, assistant attorney general, with
whom were Emily Gait, assistant attorney general, and,
on the brief, William Tong, attorney general, for the
appellee (defendant).
Opinion
HARPER, J. The plaintiff, Pavonix (Massachusetts),
Inc., formerly known as Softscape, Inc., appeals from the
judgment of the trial court denying its motion to compel
arbitration and to stay litigation and simultaneously
granting the motion filed by the defendant, the State
of Connecticut, Judicial Branch,1 to permanently enjoin
arbitration. On appeal, the plaintiff claims that the court, Klau, J., improperly determined that, notwithstanding
the permission the plaintiff received from the claims
commissioner to bring an action against the defendant,
sovereign immunity barred the plaintiff from pursuing
its claims against the defendant by way of private arbitration rather than by way of litigation in the Superior
Court. We affirm the judgment of the trial court.
The following undisputed facts and procedural history
are relevant to the resolution of this appeal. The plaintiff is a technology company that designs and installs web
based software products. On November 19, 1999, the
defendant issued a written request for proposal (RFP) for
the development and delivery of a new case management
1
The Judicial Branch is a department of the state of Connecticut. See Conn. Const., art. II (“[t]he powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another”).
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
system for its Court Support Services Division. The RFP
listed certain terms and conditions that the defendant
expected to be included in any resulting contract, including a “[s]ettlement of [c]laims” condition that specified
that “[a]ny controversy or claim arising out of, or relating to this contract, or the breach thereof, shall be settled by Arbitration in accordance with the rules of The American
Arbitration Association then in effect.”
The plaintiff submitted a response to the RFP on February 1, 2000. In that response, the plaintiff expressly
agreed with the arbitration provision set forth in the
“[s]ettlement of [c]laims” condition included in the RFP.
Thereafter, the defendant selected the plaintiff for the
job and the plaintiff “began work implementing, configuring, and customizing its state-of-the-art relational
enterprise software application database for the [defendant], referred to as the Case Management Information
System or ‘CMIS.’ ”
The plaintiff did so in accordance with a Software
Development and License Agreement (agreement) the
parties entered into on June 20, 2000. The agreement
delineated the parties’ respective rights and obligations
with respect to the program the plaintiff was implementing and developing for the defendant (licensed program).
It also incorporated by reference the arbitration provision from the “[s]ettlement of [c]laims” condition listed in the RFP and further stated that “ANY CLAIM UNDER THIS
AGREEMENT MUST BE FILED WITH AN ARBITRATOR WITHIN ONE (1) YEAR FROM THE ACCRUAL
OF THE CLAIM.” Moreover, the agreement specified
that the defendant “is unable to waive [its] [s]overeign
immunity in any form.”
The plaintiff alleged that, from 2000 to 2005, it performed its contractual obligations and delivered a version of CMIS to the defendant, but that the defendant
“failed to pay [the plaintiff] for all its work while retaining the licensed program for its own use.” In 2007, the
plaintiff filed a complaint with the Office of the Claims
Commissioner, alleging that the defendant had breached
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
the agreement by failing to pay the plaintiff and also by
unlawfully disclosing and modifying the licensed program. After obtaining additional information through
discovery, the plaintiff twice amended its complaint,
first in 2011, and again in 2012. In its second amended
complaint, the plaintiff alleged claims for (1) breach of
the agreement, (2) copyright infringement, (3) violation
of the Connecticut Uniform Trade Secrets Act (CUTSA),
General Statutes § 35-50 et seq., and (4) violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.
In 2023, the Attorney General filed stipulations with
the Office of the Claims Commissioner that authorized
the plaintiff to sue the defendant. See General Statutes
§ 4-160 (e).2 The November 20, 2023 amended stipulation stated in relevant part that the plaintiff was
granted “permission to sue the [defendant] in Superior
Court” and that the plaintiff “ ‘shall be deemed to have
been granted permission to sue the [defendant] by the
[c]laims [c]ommissioner . . . .’ ” It further stated that
“[t]he [defendant] reserves the right to raise all subject matter jurisdictional and other defenses available in the
Superior Court.”
In August 2024, the plaintiff commenced this civil
action by way of a three count complaint sounding in (1)
breach of contract, (2) misappropriation of trade secrets
in violation of CUTSA and (3) unfair trade practices in
violation of CUTPA. In the “[i]ntroduction” section of
its complaint, the plaintiff stated that it “intends to
pursue its claim against the [defendant] in arbitration,
as authorized by the agreement. [The plaintiff] is filing
the present complaint to ensure its compliance with all
applicable statutes of limitation and will file a motion to stay this litigation pending arbitration.” The plaintiff
2
General Statutes § 4-160 (e) provides: “A claimant exclusively seeking permission to sue the state shall be deemed to have been granted permission to sue the state by the Claims Commissioner if the Attorney General files with the Office of the Claims Commissioner a signed stipulation authorizing permission to sue the state for a particular claim of the claimant.”
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
filed an arbitration demand with the American Arbitration Association around the same time it commenced this
action. The defendant did not agree to arbitrate.
On September 20, 2024, the plaintiff filed its complaint
in the Superior Court and also filed a motion to compel
arbitration and to stay litigation3 with a supporting
memorandum of law. The plaintiff argued that all of
its claims against the defendant fell within the scope of
the parties’ agreement to arbitrate and that “sovereign
immunity is not an obstacle to compelling the [defendant]
to participate in arbitration” because it had received
permission to “assert its claims in . . . court.”
On September 24, 2024, the defendant filed a motion
to permanently enjoin arbitration and a memorandum
of law in support thereof. The defendant argued that
“[s]overeign immunity precludes arbitration of this
case; that immunity can only be waived by the legislature and the legislature has not waived it to allow for
arbitration over the [agreement]. The only waiver the
legislature has made that is applicable in this case is the claims commissioner process, which is a limited waiver
of sovereign immunity and only permits actions in the
Superior Court.” The defendant then filed an objection
to the plaintiff’s motion to compel arbitration and to
stay litigation on October 21, 2024. It reiterated in that objection that “[t]he [defendant] cannot be compelled to
arbitrate without a clear waiver of sovereign immunity,
which can only be done by the legislature, and there is
no such waiver.”
3
As authority for its motion, the plaintiff cited to, inter alia, General Statutes § 52-409, which provides: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
The plaintiff filed an objection and response in opposition to the defendant’s motion to permanently enjoin
arbitration on October 24, 2024, and a reply in support
of its motion to compel arbitration and to stay litigation on November 5, 2024. The defendant filed a reply
in further support of its motion to enjoin arbitration on
November 7, 2024.
The court, Klau, J., heard oral argument regarding the
parties’ competing motions on January 7, 2025, and, on
February 4, 2025, issued a memorandum of decision in
which it denied the plaintiff’s motion to compel arbitration and to stay litigation and granted the defendant’s
motion to permanently enjoin arbitration. The court
concluded that, “when the General Assembly delegated
to the claims commissioner the power to waive sovereign
immunity, it placed limits on the scope of that delegated
power. One of those limits is that the claims commissioner may only waive sovereign immunity to permit
lawsuits against the state in Superior Court. The claims
commissioner has no statutory authority to waive sovereign immunity and require the state to defend itself
in a nonjudicial forum. Moreover, a state agency cannot
affect the scope of a waiver of sovereign immunity by
including an arbitration provision in a contract.” The
court based its conclusion on § 4-160, which it deemed
“susceptible of but one reasonable interpretation: it only empowers the claims commissioner to waive sovereign
immunity for the purpose of allowing a lawsuit against
the state in Superior Court, where the case must remain
until it is settled or until judgment enters after trial.” This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
Before we address the merits of the plaintiff’s claims,
we first must consider the threshold question of whether
the ruling from which the plaintiff appeals, namely, the
simultaneous denial of the plaintiff’s motion to compel arbitration and to stay litigation and granting of
the defendant’s motion to permanently enjoin arbitration,
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
constitutes an appealable final judgment. “The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. . . . The policy concerns underlying the final judgment rule are to discourage piecemeal
appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. . . . We therefore must always determine the threshold
question of whether the appeal is taken from a final
judgment before considering the merits of the claim.”
(Internal quotation marks omitted.) Kellogg v. Middlesex Mutual Assurance Co., 211 Conn. App. 335, 344,
272 A.3d 677 (2022). “A determination regarding . . .
subject matter jurisdiction is a question of law . . .
[and, therefore] our review is plenary.” (Internal quotation marks omitted.) 707 Blue Hills, LLC v. Kelly,
234 Conn. App. 865, 871, 344 A.3d 1223 (2025).
We begin by setting forth the relevant procedural
history. On May 9, 2025, the defendant filed a motion
to dismiss this appeal for lack of subject matter jurisdiction because, in its view, the court’s ruling denying
the plaintiff’s motion to compel arbitration and to stay
litigation and granting the state’s motion to permanently
enjoin arbitration does not constitute a final judgment for purposes of appeal. The defendant argued in that motion
that “[n]o statute permits the plaintiff to appeal from
the denial of its motion to compel,” that there is likewise no “statute giving the plaintiff the right to immediately
appeal an interlocutory prohibitory injunction,” and
that the court’s collective rulings do not satisfy the
finality test for interlocutory orders set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983).4 Against this
backdrop, the defendant maintained that “neither aspect
4
“Under Curcio, interlocutory orders are immediately appealable if the order or ruling (1) terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted.) Cunniffe v. Cunniffe, 150 Conn. App. 419, 431, 91 A.3d 497, cert. denied, 314 Conn. 935, 102 A.3d 1112 (2014).
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
of the court’s interlocutory ruling is immediately appealable” and thus “the ‘inextricably intertwined’ doctrine
does not apply.” See, e.g., 707 Blue Hills, LLC v. Kelly,
supra, 234 Conn. App. 872 (“[i]n some circumstances, the
factual and legal issues raised by a legal argument, the
appealability of which is doubtful, may be so ‘inextricably intertwined’ with another argument, the appealability of
which is established that we should assume jurisdiction
over both” (internal quotation marks omitted)).
The plaintiff filed its principal appellate brief in this
appeal on May 12, 2025, three days after the defendant
filed its motion to dismiss. In that brief, the plaintiff
claimed that the “court’s entry of injunctive relief is
a final appealable order and provides jurisdiction for
this appeal.” The plaintiff argued, more specifically,
that (1) the “entry of permanent injunctive relief [has
been deemed] a final appealable order” by our Supreme
Court in Bozrah v. Chmurynski, 303 Conn. 676, 682,
36 A.3d 210 (2012), (2) the defendant’s motion to permanently enjoin arbitration was a counterclaim that
the court granted in its entirety, thereby giving rise to
an immediately appealable final judgment, and (3) the
issues presented in the motion to compel arbitration
and to stay litigation are inextricably intertwined with
the granting of the injunction, thereby constituting
an appealable final judgment over which this court has
jurisdiction. The plaintiff also filed a timely opposition to the defendant’s motion to dismiss in which it reiterated those same arguments.
On September 3, 2025, this court denied the defendant’s motion to dismiss “without prejudice to the defendant addressing in its appellee’s brief, and the plaintiff in its reply brief, if any, whether the denial of the motion to stay under General Statutes § 52-409, which is not a
final judgment, is ‘inextricably intertwined’ with the
granting of the [defendant’s] application for a permanent
injunction, which is a final judgment, for the purpose of
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
appellate jurisdiction. See Kellogg v. Middlesex Mutual
Assurance Co., [supra, 211 Conn. App. 349].”
In a footnote in its appellee’s brief, without any explication, the defendant “respectfully disagree[d]” with this
court’s order insofar as it “concluded that [this court]
had jurisdiction over this interlocutory appeal because
the [trial] court granted a permanent injunction barring
arbitration” and it “reserve[d] the right to reassert its
jurisdictional challenge upon further review, if any.” The defendant, however, expressly “acknowledge[d] that the
decision to grant a permanent injunction barring arbitration is ‘inextricably intertwined’ with the denial of the
plaintiff’s § 52-409 motion because the same rationale
underlies the court’s decision to permanently enjoin
arbitration and deny the plaintiff’s § 52-409 motion:
sovereign immunity bars arbitration.” Thus, the defendant appears to concede, at least for purposes of this
appeal, that “this court has jurisdiction to address the
nonappealable ruling on the plaintiff’s § 52-409 motion
because this court’s assessment of whether sovereign
immunity bars arbitration would be ‘equally applicable’
to the permanent injunction ruling and the denial of the
plaintiff’s § 52-409 motion.”5
In its reply brief, the plaintiff reiterated its argument
that the court’s “entry of a permanent injunction is a
final, appealable order” and claimed that “[t]his court
has jurisdiction over the denial of [the plaintiff’s] stay motion . . . because that denial is inextricably intertwined with the grant of the [defendant’s] requested injunctive
relief.” We agree with the plaintiff and conclude that we
have subject matter jurisdiction to consider the plaintiff’s appeal from the court’s order denying its motion to
5
During oral argument before this court, when asked to clarify the basis for the defendant’s disagreement with this court’s order denying its motion to dismiss, the defendant’s counsel explained that the defendant does not agree that the granting of its motion to permanently enjoin arbitration constitutes an appealable final judgment. Although counsel suggested that this court could choose to revisit that determination, he stated that, “at this point, we understand and . . . recognize what the court has decided on that issue.”
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
compel arbitration and to stay litigation and granting the defendant’s motion to permanently enjoin arbitration.
At the outset, we note that our appellate courts have
determined that the granting of a permanent injunction
constitutes an appealable final judgment. See Bozrah v.
Chmurynski, supra, 303 Conn. 682 (entry of permanent
injunctive relief constituted final appealable order);
Glasson v. Portland, 6 Conn. App. 229, 231 n.3, 504
A.2d 550 (1986) (same); see also Marinos v. Building
Rehabilitations, LLC, 67 Conn. App. 86, 87, 787 A.2d
46 (2001) (affirming judgment of trial court enjoining arbitration); Weitz Co. v. Shoreline Care Ltd. Partnership, 39 Conn. App. 641, 645, 666 A.2d 835 (1995)
(same). Indeed, our Supreme Court has explained that
“a permanent injunction effects a final determination of
[the] rights” at issue. (Internal quotation marks omitted.) Bozrah v. Chmurynski, supra, 682. By contrast,
the entry of a temporary injunction, which is generally
not an appealable final judgment, simply “[maintains] the
status quo while [those] rights . . . are being determined . . . .” (Internal quotation marks omitted.) Id. In Bozrah, our Supreme Court relied on this distinction to conclude
that, where the trial court “made a final determination
that the town could search [a] property over the objection of the defendants,” that order was an appealable
final judgment because, although the trial court labeled
its order as a temporary injunction, it “functioned as a
permanent injunction.” Id.
In the present case, the defendant’s motion was labeled
a “motion to permanently enjoin arbitration,” it sought
to permanently enjoin arbitration, and the court granted
the defendant the relief it was seeking. In other words,
the court granted a permanent injunction that finally
determined the rights at issue by precluding arbitration of the plaintiff’s claims. As such, the portion of the plaintiff’s appeal challenging the judgment rendered
in favor of the defendant on its motion to permanently
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
enjoin arbitration is jurisdictionally proper. See Bozrah
v. Chmurynski, supra, 303 Conn. 682.
We must therefore consider whether the judgment
rendered on the plaintiff’s motion to compel arbitration
and to stay litigation, which is not an immediately appealable final judgment;6 see Travelers Ins. Co. v. General
Electric Co., 230 Conn. 106, 107–108, 644 A.2d 346
(1994); Success Centers, Inc. v. Huntington Learning
Centers, Inc., 223 Conn. 761, 769–76, 613 A.2d 1320
(1992); is inextricably intertwined with the judgment
rendered in favor of the defendant on its motion to permanently enjoin arbitration. As previously stated in
this opinion, the plaintiff argues, and the defendant
agrees, that the judgments on the competing motions are
inextricably intertwined. Our independent assessment
of the competing motions and the court’s memorandum
of decision thereon leads us to the same conclusion. See,
e.g., A Better Way Wholesale Autos, Inc. v. Saint Paul,
192 Conn. App. 245, 257, 217 A.3d 996 (2019) (articulating “bedrock principle that parties cannot agree to
confer subject matter jurisdiction on a court”), aff’d,
338 Conn. 651, 258 A.3d 1244 (2021).
In its motion to compel arbitration and to stay litigation, the plaintiff maintained that all of its claims against the defendant fell within the scope of the parties’ agreement to arbitrate and that “sovereign immunity is not an
obstacle to compelling the [defendant] to participate in
arbitration” because it had received permission to “assert its claims in . . . court.” In its motion to permanently
enjoin arbitration, however, the defendant argued that
sovereign immunity had been waived only for purposes of
allowing an action to be brought against it in the Superior Court and that, consequently, sovereign immunity was
a bar to arbitration in this matter. Both motions were
based on the same underlying facts and, indeed, the court
addressed them together. In doing so, the court assessed
6
The parties do not dispute that the court’s denial of the plaintiff’s motion to compel arbitration and to stay litigation is not immediately appealable.
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
whether sovereign immunity barred the plaintiff from
pursuing its claims in an arbitral forum and its conclusion that it did was determinative of both motions. In
other words, the court relied on the same rationale to
deny the plaintiff’s motion and to grant the defendant’s
motion. See Kellogg v. Middlesex Mutual Assurance
Co., supra, 211 Conn. App. 349. As such, our analysis of
the court’s decision to grant a permanent injunction in
favor of the defendant will be equally applicable to our
analysis of the court’s decision to deny the plaintiff’s
motion to compel arbitration and to stay litigation. See
Collins v. Anthem Health Plans, Inc., 266 Conn. 12,
30, 836 A.2d 1124 (2003) (concluding that CUTPA and
non-CUTPA counts were “ ‘inextricably intertwined’ ”
where factual and legal bases of claims did not differ);
Kellogg v. Middlesex Mutual Assurance Co., supra,
349 (reaching merits of all issues in appeal from denial
of motion for summary judgment even though only res
judicata defense was immediately appealable because
analysis as to res judicata claims was equally applicable
to remainder of defendant’s claims). For these reasons,
we conclude that we have subject matter jurisdiction to
consider all of the plaintiff’s claims on appeal directed to the trial court’s denial of its motion to compel arbitration and to stay litigation and simultaneous granting of the
defendant’s motion to permanently enjoin arbitration.
II
With respect to the merits of this appeal, the plaintiff
claims that the court improperly determined that the
permission it received by way of the process set forth in
§ 4-160 to bring an action against the defendant waived
sovereign immunity only for the purpose of allowing
the plaintiff to litigate its claims in the Superior Court and did not authorize the plaintiff to have those claims
determined by way of private arbitration instead. The
plaintiff maintains that the court misconstrued § 4-160
when it concluded that the “claims commissioner may
only waive sovereign immunity to permit lawsuits
against the state in Superior Court” and that “[t]he
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
claims commissioner has no statutory authority to waive
sovereign immunity and require the state to defend
itself in a nonjudicial forum.” Relying on subsection (h)
of § 4-160,7 the plaintiff argues that “§ 4-160 provides
that, once the state waives its sovereign immunity, its
rights and liabilities in the resulting legal action are the same as a private person. . . . There is no question that
a court can enforce an arbitration agreement against a
private person. . . . There should likewise be no question that it can enforce an arbitration agreement against the
state, where the state has waived sovereign immunity
from the claims to be arbitrated.” (Citations omitted.)
In other words, the plaintiff argues that, as a matter of
statutory interpretation, the waiver of the defendant’s
sovereign immunity from suit on the plaintiff’s claims
also waives the defendant’s sovereign immunity from
private arbitration on those claims.
The defendant claims, in response, that the court properly concluded that the doctrine of sovereign immunity
precludes arbitration in this case. In support of this
claim, the defendant advances two arguments. First,
the defendant claims that “this court can . . . affirm on
the alternative ground that the plaintiff’s arbitration
demand is beyond the narrow scope of the permission
to sue that was granted under § 4-160 (e).” Second, the
defendant contends that “the court correctly held that
sovereign immunity barred arbitration because the legislature intended for only the Superior Court to adjudicate
the state’s liability in an action stemming from [the
Office of the Claims Commissioner].” We agree with the
defendant’s second argument.
We begin with the following relevant standards and
legal principles. “The principle that the state cannot
7
General Statutes § 4-160 (h) provides in relevant part: “In each action authorized by the Claims Commissioner . . . or any action where permission to sue the state has been deemed to have been granted by the Claims Commissioner . . . (1) the state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of, and (2) the rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances.”
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
be sued without its consent, or sovereign immunity, is
well established under our case law. . . . The doctrine of sovereign immunity operates as a strong presumption in
favor of the state’s immunity from liability or suit. . . . [T]o circumvent the strong presumption of sovereign
immunity in [an] action for monetary damages, the burden is on the [claimant] to show that . . . the legislature, either expressly or by force of a necessary implication,
statutorily waived the state’s sovereign immunity . . . . In the absence of a statutory waiver of sovereign immunity,
the [claimant] may not bring an action against the state
for monetary damages without authorization from the
. . . [claims] commissioner to do so. . . .
“When sovereign immunity has not been waived, the
. . . [claims] commissioner is authorized by statute to
hear monetary claims against the state and determine
whether the claimant has a cognizable claim. . . . The . . . [claims] commissioner, if he [or she] deems it just and
equitable, may sanction suit against the state on any
claim which, in his [or her] opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” (Citation omitted; internal quotation
marks omitted.) State v. Avoletta, 212 Conn. App. 309,
321–22, 275 A.3d 716 (2022), aff’d, 347 Conn. 629, 298
A.3d 1211 (2023).
“[P]rior to 1959, before the legislature created the
office of the claims commission, the General Assembly
in the first instance considered what action, if any, was
appropriate on claims made against the state. . . . It
reached a point where the number of claims submitted to
the legislature became a major burden and this interfered
with the more important function of enacting general
legislation. . . . [The] director [of the claims commission] explained [that the commission was created] to
ensure that equity and justice [would be] done. A statutory procedure for the disposition of claims against the
state, to be administered by a claims commission, was
adopted by the enactment of Public Acts 1959, No. 685.
Subsequently, in 1975, the legislature substituted a
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
claims commissioner . . . for the claims commission. . . . Therefore, the [claims] commissioner is in reality the
conscience of the state, assuming in part the prior role of the legislature to ensure that justice and equity is done. It is the [claims] commissioner who now determines what
claims should be paid, what claims should be referred to
the legislature for payment, or which claimants should
be authorized to institute an action against the state. . . .
“The legislative scheme by which the [claims] commissioner reviews possible claims against the state is
contained in [chapter 53 of the General Statutes, General
Statutes §§ 4-141 through 4-165c], inclusive.” (Citations
omitted; internal quotation marks omitted.) Reilly v.
Smith, 84 Conn. App. 849, 854–55, 855 A.2d 1000,
cert. denied, 271 Conn. 938, 861 A.2d 513 (2004). “The
claims commissioner . . . may waive [the state’s sovereign] immunity, pursuant to . . . § 4-160 (a), and consent to
suit.” Krozser v. New Haven, 212 Conn. 415, 423, 562
A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S.
Ct. 757, 107 L. Ed. 2d 774 (1990); see also Envirotest
Systems Corp. v. Commissioner of Motor Vehicles, 293
Conn. 382, 399, 978 A.2d 49 (2009) (§ 4-160 (a) empowers claims commissioner to waive sovereign immunity
and authorize suit against state); Chotkowski v. State,
240 Conn. 246, 270, 690 A.2d 368 (1997) (same). Indeed,
our Supreme Court has long “recognized that [t]he sole
purpose of § 4-160 . . . is to remove the bar of sovereign immunity when the claims commissioner determines
that it would be just and equitable to permit a claimant
to seek redress against the state.” (Internal quotation
marks omitted.) Jamie G. v. Dept. of Children & Families,
352 Conn. 736, 752, 339 A.3d 598 (2025).
The issue of whether the permission the plaintiff
received to sue the state, in accordance with the procedure set forth in § 4-160, waived the defendant’s sovereign immunity from private arbitration presents an
issue of statutory interpretation over which we exercise
plenary review. See Perez v. University of Connecticut,
182 Conn. App. 278, 287, 189 A.3d 664 (2018). “Our
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
analysis is guided by General Statutes § 1-2z and the
general rules of statutory construction8 . . . subject to a significant qualification. . . . That is, where, as here, the claim is that the legislature has abrogated the common
law, [w]e recognize only those alterations of the common
law that are clearly expressed in the language of the
statute . . . . [We do so] because the traditional principles of justice [on] which the common law is founded should
be perpetuated. . . . Indeed, it is well established that, [w]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of
[statutory] construction.” (Citations omitted; footnote
added; internal quotation marks omitted.) Jamie G. v.
Dept. of Children & Families, supra, 352 Conn. 746.
With these principles in mind, we turn to the language
of § 4-160. Subsection (a) of § 4-160 provides in relevant part: “Whenever the Claims Commissioner deems it
just and equitable, the Claims Commissioner . . . may
authorize suit against the state on any claim9 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. . . .” (Footnote added.)
After permission to sue the state has been granted, or
deemed granted; see General Statutes § 4-160 (e), (f) and
(h); “[t]he claimant shall bring such action against the
state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident
8
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to determine that meaning . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and [unambiguous] and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Perez v. University of Connecticut, supra, 182 Conn. App. 288.
9
A “[c]laim,” by statutory definition, “means a petition for the payment or refund of money by the state or for permission to sue the state.” General Statutes § 4-141.
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
of this state, in the judicial district of Hartford or in the judicial district in which the claim arose.” (Emphasis
added.) General Statutes § 4-160 (i). The claimant must
do so by way of “[c]ivil process directed against the state . . . .” (Emphasis added.) General Statutes § 4-160 (j).
Thereafter, once this procedure has been followed
and the case is pending against the state in court, in the appropriate judicial district, the statute specifies that
“[i]ssues arising in such actions shall be tried to the court without a jury”; (emphasis added) General Statutes
§ 4-160 (k); and that “[t]he laws and rules of practice
governing disclosures in civil actions shall apply . . . in any such action.” (Emphasis added.) General Statutes
§ 4-160 (l). Moreover, § 4-160 (m) provides that “[t]he
Attorney General, with the consent of the court, may
compromise or settle any such action” and that “[t]he
terms of every such compromise or settlement shall be
expressed in a judgment of the court”; § 4-160 (n) provides that “[c]osts may be allowed against the state as the court deems just”; and § 4-160 (o) provides that “[t]he clerk of the court in which judgment is entered against the state
shall forward a certified copy of such judgment to the
Comptroller. . . .” (Emphasis added.)
Finally, subsection (p) of § 4-160 provides in relevant
part that “the Attorney General shall report to the joint
standing committee of the General Assembly having
cognizance of matters relating to the judiciary on the
status and disposition of all actions authorized pursuant to this section . . . or brought against the state under any other provision of law and in which the interests of
the state are represented by the Attorney General. . . .”
The Attorney General’s report “shall include,” inter alia, “(1) [t]he number of such actions pending in state and
federal court . . . (2) the number of new actions brought
in the preceding year in state and federal court . . . [and] (3) the number of actions disposed of in the preceding
year, categorized by the ground for the action that was
disposed of and whether the action was disposed of by
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
settlement or litigation to final judgment . . . .” (Emphasis added.) General Statutes § 4-160 (p).
This statutory language embodies all of the references
made in § 4-160 to the forum in which a suit against the
state, once authorized, may be brought and pursued, and
only judicial forums are identified. There is no language
in § 4-160 that expressly references, or even alludes to,
private arbitration as an alternative forum for the disposition of authorized claims against the state. See, e.g., State v. Lombardo Bros. Mason Contractors, Inc., 307
Conn. 412, 416, 465, 54 A.3d 1005 (2012) (chief deputy
commissioner of public works was not authorized by
statute to waive common-law doctrine of nullum tempus
occurrit regi (no time runs against king) in contract with defendant where “[n]one of the language in the statute
alludes to liability, lawsuits or dispute resolution” (internal quotation marks omitted)); see also MBNA America
Bank, N.A. v. Boata, 283 Conn. 381, 389, 926 A.2d
1035 (2007) (explaining distinction between jurisdiction of court to hear case and power of arbitrator to do
so and describing arbitration as “alternative forum” for
dispute resolution); Benistar Employer Services Trust
Co. v. Benincasa, 189 Conn. App. 304, 309, 207 A.3d
67 (explaining that “[a]rbitration is a favored method to
prevent litigation, promote tranquility and expedite the
equitable settlement of disputes” (emphasis added; internal quotation marks omitted)), cert. denied, 331 Conn.
932, 208 A.3d 280 (2019). In other words, in authorizing the claims commissioner to waive the common-law
doctrine of sovereign immunity to permit certain actions
to proceed against the state, the legislature evinced its
intent that “such actions” would be brought, litigated
and resolved in court and specified, in doing so, that the laws and rules of practice applicable to civil actions in
our courts would govern the process. See 72 Am. Jur.
2d 545, States, Territories & Dependencies § 122 (2023)
(“A state may limit its waiver of immunity to actions
brought in its own courts or even as to particular state
courts. For instance, a state may consent to be sued in
its court of claims or require that claims be filed with a
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
state claims commissioner or commission.” (Footnotes
omitted.)).
Indeed, the clearest indication of this legislative
intent is found in § 4-160 (k), which expressly states
that “[i]ssues arising in such actions shall be tried to
the court without a jury.” (Emphasis added.) The trial
court observed, and we agree, that this “plain language
. . . serves two purposes. First, it makes clear that the
claims commissioner’s authority does not extend to waiving sovereign immunity to permit jury trials against
the state. Second, it requires all issues to be tried to the court, including liability and damages. It is unreasonable to interpret § 4-160 (k) to mean that the court can resolve pretrial issues but liability and damages—the merits of
a case—may be resolved in a different dispute resolution
forum.” (Emphasis in original.) See Perez v. University
of Connecticut, supra, 182 Conn. App. 290–91 (explaining that inclusion of this language in § 4-160 eliminates
“any question regarding [the legislature’s] intent that
actions, like the one the [plaintiff was] permitted . . . to bring, shall be tried to the court rather than a jury”); see also 72 Am. Jur. 2d, supra, § 122, p. 545.
The plain and unambiguous language of § 4-160 does
not authorize a waiver of sovereign immunity from
private arbitration and “[we] cannot, by [judicial] construction, read into statutes provisions [that] are not
clearly stated.” (Internal quotation marks omitted.)
Rider v. Rider, 210 Conn. App. 278, 288, 270 A.3d 206
(2022); cf. General Statutes § 4-61 (wherein legislature waives sovereign immunity for claims emanating
from highway and public works contracts and expressly
identifies arbitration as alternative to bringing action
in Superior Court). Even so, the plaintiff claims that,
because § 4-160 (h) provides that “[i]n . . . any action
where permission to sue the state has been deemed to
have been granted by the Claims Commissioner . . . the
rights and liability of the state . . . shall be coextensive with and shall equal the rights and liability of private
persons in like circumstances,” the defendant, like any
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
other private person who entered into an arbitration
agreement, could be, and should have been, compelled
by the court to submit to private arbitration and have
the authorized claims decided in an arbitral forum. We
are not persuaded that this language, when properly
considered within § 4-160’s broader statutory context,
abrogates the common law such that it waives the state’s
sovereign immunity from private arbitration. See, e.g.,
State ex rel. Dunn v. Burton, 229 Conn. App. 267, 279,
327 A.3d 982 (2024) (“[i]t is a basic tenet of statutory
construction that [w]e construe a statute as a whole
and read its subsections concurrently in order to reach
a reasonable overall interpretation” (internal quotation
marks omitted)).
First, and most notably, the plaintiff’s interpretation cannot be reconciled with § 4-160 (k), which clearly
evinces the legislature’s intent that actions brought
against the state following a waiver of sovereign immunity in accordance with the provisions of § 4-160 “shall
be tried to the court rather than a jury.” See Perez v.
University of Connecticut, supra, 182 Conn. App. 290–
91. Second, in the places where it identified a forum in
which to bring and pursue an authorized action against
the state, the legislature referenced only judicial forums and did not mention arbitration or arbitral forums at all. This is in stark contrast to § 4-61 wherein, as previously noted in this opinion, the legislature expressly conveyed
its intent to waive sovereign immunity from private arbitration. See Rubin v. Brodie, 228 Conn. App. 617, 645,
325 A.3d 1096 (2024) (“[w]here a statute, with reference
to one subject contains a given provision, the omission
of such provision from a similar statute concerning a
related subject . . . is significant to show that a different intention existed” (internal quotation marks omitted)).
Read in this proper context, then, a private person “in
like circumstances” is a private person against whom a
lawsuit has been brought, and which is being pursued,
in court, not in private arbitration. As this court has
previously observed in construing an earlier version of
§ 4-160, “[t]he mere fact that [there is language in § 4-160
Pavonix (Massachusetts), Inc. v. State of Connecticut, Judicial Branch
that] dictates that the state’s liability for damages shall be equal to the liability of a private person does not mean that the language can be stretched to address the manner
in which that liability shall be determined . . . .” Perez v. University of Connecticut, supra, 290.
In sum, the plaintiff’s claim is that the legislature
abrogated the common law to allow for claims against the
state that have been authorized, or deemed authorized,
by the claims commissioner to be disposed of by way of
private arbitration. Because “[w]e recognize only those
alterations of the common law that are clearly expressed
in the language of the statute”; (internal quotation marks omitted) Jamie G. v. Dept. of Children & Families, supra,
352 Conn. 746; and there is no such clear expression in
§ 4-160, we reject the plaintiff’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.