General speaking, you cannot sue the state unless the state gives you permission. The legal concept that prevents you from being able to sue the state is known as “sovereign immunity,” and comes from the English common law where the commoners were not allowed to sue the King without his permission. The State of Connecticut has decided; however, that it is in its interest to allow itself to be sued when it enters contracts pertaining to the construction of public works projects. Conn. Gen. Stat. § 4-61 expressly provides that anyone that enters a contract with the state for the construction of a highway, bridge, building or other public work may bring an action against the state as long as it complies with the statutory requirements. One such requirement is that the contractor gives notice of its claim to the agency head within 2 years of the project’s acceptance. On December 7, 2010, the Connecticut Supreme Court released a decision that clarifies the § 4-61 notice requirements.
In C. R. Klewin Northeast, LLC v. State of Connecticut, the Supreme Court overturned a trial court decision that dismissed the contractor’s complaint because the contractor’s notice purportedly did not comply with § 4-61. In C. R. Klewin Northeast, LLC, the contractor initially wrote a letter to the department’s bureau chief requesting additional monies for cost overruns. After efforts to resolve the claim failed, the contractor sent the commissioner a letter requesting his assistance in resolving the dispute. The trial court held that the first letter did not satisfy the § 4-61 notice requirements because it was not sent to the commissioner and the second letter was insufficient because it did not contain a “reference to any intent to pursue a claim, pursuant to § 4-61, or by suit or arbitration.” The Supreme Court, however, found that there was no specific requirement for a notice of claim to make any such statement. After it acknowledged that § 4-61 was vague, the Supreme Court stated that a notice of claim “is sufficient if a contractor provides factually adequate notice to a department head that it is asserting a right to payment of money that it believes it is owed.” Also, while the statute is unclear about the amount of factual information required, the Supreme Court determined that the amount of factual information is not that important due to provisions that have been added to the statute that allow the state to request additional information. The Court also said that close calls were to be decided in upholding valid claims. Nonetheless, contractors should err on the side of caution and provide more factual information than it believes is necessary.
At a minimum, the notice should:
- Be delivered to the Department Head within the statutory time limit;
- Identify the project;
- Specify the amount of the claim; and
- Provide sufficient detail so that the state may attempt to resolve the claim short of arbitration or litigation.
The notice requirements are not complicated but the failure to comply will result in the dismissal of your action. Thus, if you should have any questions, please give us a call.