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*********************************************** 
KIMBERLY MANGINELLI, CONSERVATOR (ESTATE

OF DARLENE MATEJEK), ET AL. v. REGENCY

HOUSE OF WALLINGFORD, INC., ET AL.

(SC 20767)

(SC 20768)

McDonald, D’Auria, Mullins, Ecker and Seeley, Js.

Syllabus

Pursuant to Executive Order No. 7V, § 6, which was issued by the governor

on April 7, 2020, amid the COVID-19 pandemic, ‘‘any health care professional or health care facility shall be immune from suit for civil liability

for any injury or death alleged to have been sustained because of the

individual’s or health care facility’s acts or omissions undertaken in

good faith while providing health care services in support of the [s]tate’s

COVID-19 response, including but not limited to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19

pandemic, that renders the health care professional or health care facility

unable to provide the level or manner of care that otherwise would

have been required in the absence of the COVID-19 pandemic and which

resulted in the damages at issue . . . .’’

The plaintiff, individually and as administratrix of the estate of M, sought

to recover damages from the defendants R Co. and N Co., which operate

a nursing home, for the allegedly wrongful death of M. M was being

cared for at the nursing home, where she required assistance for bed and

wheelchair transfers. During a bed transfer on April 26, 2020, M fell.

The nursing home staff placed M back in her bed but failed to immediately report her fall to her family and did not obtain medical treatment

for M for two days. M eventually was treated and diagnosed with injuries

that left her permanently disabled and that, according to the plaintiff,

ultimately led to her demise. The plaintiff alleged that the defendants

were negligent and reckless in their care and treatment of M in that

they, among other things, failed to implement a plan of care for M prior

to her fall, to report the fall when it occurred, to obtain immediate

treatment, and to treat M’s pain. The defendants filed a motion to dismiss

the plaintiff’s complaint, claiming that they were immune from suit and

liability under Executive Order No. 7V, § 6. In opposing the motion, the

plaintiff argued that M’s injuries did not have any connection to a COVID19 diagnosis or treatment. The trial court denied the defendants’ motion

to dismiss, concluding that the immunity conferred by the executive

order applied only in cases involving the treatment of COVID-19 patients.

The defendants appealed from the trial court’s motion to dismiss, and,

upon certification by the Chief Justice pursuant to statute (§ 52-265a)

that a matter of substantial public interest was involved, the defendants

filed a separate appeal with this court, claiming that the trial court

incorrectly had determined that they were not immune from suit and

liability under Executive Order No. 7V for their alleged acts and omissions and that the court, therefore, improperly denied their motion

to dismiss.

Held that the trial court properly denied the defendants’ motion to dismiss,

as the defendants failed to establish the requisite connection between

the alleged acts and omissions for which they sought immunity under

Executive Order No. 7V and an alleged lack of resources attributable

to the COVID-19 pandemic:

In the companion case of Mills v. Hartford HealthCare Corp. (347 Conn.

524), this court determined that the purpose of the immunity provision

of Executive Order No. 7V, § 6, was to keep health care facilities open

and operating during the pandemic in the face of overwhelming demand

for medical care due to the emergence of COVID-19 by augmenting the

state’s health care workforce through the recruitment of health care

professionals who had not previously maintained liability coverage, by

facilitating the deployment of volunteers and out-of-state professionals,

and by calling on health care professionals to perform services that
they otherwise would not ordinarily perform in the ordinary course of

business, and, to encourage maximum participation, there was a compelling state interest in affording such medical professionals and facilities

protection against liability for good faith actions in furtherance of the

state’s response to the COVID-19 pandemic.

In light of this underlying purpose, the court in Mills also determined

that immunity applies under Executive Order No. 7V when the acts or

omissions alleged to have caused the compensable injury were connected

to the health care provider’s services performed in support of the state’s

COVID-19 response, even if the provider was not specifically treating

the patient for COVID-19, and, accordingly, the trial court’s determination

in the present case that the immunity afforded under Executive Order

No. 7V applies only when the acts or omissions at issue involved the

diagnosis or treatment of a COVID-19 patient was based on an overly

narrow interpretation of that executive order.

This court determined that the plain and unambiguous language of the

lack of resources clause in Executive Order No. 7V manifested an intent

that, for immunity to apply, the health care provider must establish that

there was a lack of resources attributable to the COVID-19 pandemic

and that this lack of resources caused the acts and/or omissions for

which the provider is seeking immunity.

In the present case, although the defendants offered evidence of a lack

of specific resources that was caused by the COVID-19 pandemic, there

was no evidence as to how the lack of resources specifically related to

the defendants’ alleged actions and omissions, for example, how the

lack of resources led to the defendants’ failure to implement a plan of

care for M prior to her fall and to obtain treatment for M immediately

after her fall.

Accordingly, an open factual dispute regarding the connection between

the lack of resources and the alleged acts and omissions remained, and,

therefore, the resolution of this critical factual dispute could not be

decided on a motion to dismiss.

Argued April 27—officially released August 8, 2023*

Procedural History

Action to recover damages for, inter alia, the wrongful

death of the named plaintiff’s decedent as a result of

the defendants’ alleged medical malpractice, and for

other relief, brought to the Superior Court in the judicial

district of New Haven, where the court, Abrams, J.,

denied the defendants’ motion to dismiss, and the defendants appealed to the Appellate Court; thereafter, upon

certification by the Chief Justice pursuant to General

Statutes § 52-265a that a matter of substantial public

interest was involved, the defendants appealed to this

court; subsequently, the appeal to the Appellate Court

was transferred to this court, and the appeals were

consolidated. Affirmed.

Michael S. Taylor, with whom were Brendon P. Levesque and, on the brief, Cristin E. Sheehan, Christina

Canales and Gina Hall, for the appellants (defendants).

Robert C. Lubus, Jr., with whom was Andrew S.

Marcucci, for the appellees (plaintiffs).

Joshua Perry, solicitor general, with whom, on the

brief, were William Tong, attorney general, and Michael

K. Skold, deputy solicitor general, for the state of Connecticut as amicus curiae.

Ryan K. Sullivan and Julianne Lombardo Klaassen

filed briefs for the Connecticut Trial Lawyers Associa-
tion as amicus curiae.

Jennifer L. Cox and Jennifer A. Osowiecki filed a

brief for the Connecticut Hospital Association as amicus curiae.

Bryan M. Killian filed a brief for the United States

Chamber of Commerce as amicus curiae.

Keith M. Blumenstock, David J. Robertson and Jeannine M. Foran filed a brief for Athena Health Care

Associates, Inc., as amicus curiae.

Angeline Ioannou and Timothy M. Gondek filed a

brief for the Connecticut Defense Lawyers Association

as amicus curiae.
Opinion

D’AURIA, J. For approximately three and one-half

years, the world has battled against the COVID-19 pandemic. As we explained in Casey v. Lamont, 338 Conn.

479, 258 A.3d 647 (2021), at the height of the pandemic,

due to the highly contagious nature of COVID-19, ‘‘[a]round

the country—indeed [around] the world—large segments of economic activity [had] been severely disrupted, if not fallen into collapse, millions of people

[had] lost their employment, many hospitals and other

health-care operations [had] been overrun by gravely

ill and dying patients, and extraordinary lockdowns

ordered by government officials, in an effort to abate

the rate of infection . . . limited the free flow of personal and commercial activity.’’ Id., 482. Addressing

these issues, on March 10, 2020, Governor Ned Lamont

issued a declaration of public health and civil preparedness emergencies, proclaiming a state of emergency

throughout the state of Connecticut as a result of

COVID-19. Then, on April 5, 2020, Governor Lamont

issued Executive Order No. 7U, which he subsequently

amended on April 7, 2020, by issuing Executive Order

No. 7V, § 6, which provides, among other things, immunity from suit and liability to health care providers under

certain circumstances relating to COVID-19.

In a companion case also decided today, we interpreted the scope of immunity afforded by Executive Order

No. 7V as it related to acts or omissions undertaken in

good faith by health care professionals and health care

facilities while providing health care services in support

of the state’s COVID-19 effort. See Mills v. Hartford

HealthCare Corp., 347 Conn. 524, A.3d (2023).

In the present public interest appeal certified under

General Statutes § 52-265a, we must determine the

scope of this immunity as it particularly relates to acts

or omissions undertaken because of an alleged lack of

resources attributable to the COVID-19 pandemic. On

appeal to this court, the defendants, Regency House of

Wallingford, Inc., and National Health Care Associates,

Inc., claim that the trial court improperly denied their

motion to dismiss the wrongful death claims filed by

the plaintiff, Kimberly Manginelli, both in her individual

capacity and as administratrix of the estate of Darlene

Matejek.1 Specifically, the defendants argue that the

trial court incorrectly determined that they had failed

to establish that the immunity provided by Executive

Order No. 7V applied to the alleged acts and omissions

at issue. According to the defendants, the trial court’s

error was premised on its overly narrow interpretation

of the order as applying only when the alleged acts and/

or omissions involved the diagnosis or treatment of

COVID-19 patients. We agree with the defendants that

the trial court too narrowly construed the language of

the order but nevertheless hold that the defendants

failed to establish that the immunity afforded by that
order applied in this case. Accordingly, on this record,

we uphold the trial court’s denial of their motion to

dismiss.

The following facts, as alleged in the complaint or

as established by uncontested evidence submitted in

conjunction with the motion to dismiss, are relevant to

this appeal. Regency House of Wallingford, Inc., operates a nursing home named Regency House of Wallingford Nursing and Rehabilitation Center (Regency

House) with National Health Care Associates, Inc., providing guidance to Regency House regarding administrative functions. Beginning in 2014, Matejek lived at

Regency House. The defendants’ care plan for Matejek

specified that she required assistance for bed and

wheelchair transfers. On or about April 26, 2020,

Matejek fell during a bed transfer. The defendants’ staff

at Regency House placed Matejek back into her bed,

did not immediately report the fall to her family, and

failed to treat her pain. The defendants’ staff at Regency

House also did not obtain medical treatment for Matejek

for two days. Eventually, she was transported to a hospital, where physicians diagnosed Matejek with left and

right femur fractures, which permanently disabled both

of Matejek’s legs. After receiving treatment for her fractured left and right femurs at the hospital, Matejek was

returned to Regency House to undergo additional medical treatment and rehabilitative care, although the

defendants’ staff at Regency House failed to adequately

provide the prescribed physical therapy. Her fall and

the delay in treatment that followed also led Matejek

to suffer a heart arrythmia, atrial fibrillation, severe

anxiety and stress, and pain and suffering. The plaintiff

alleges that, as a result of these injuries, Matejek died

on December 29, 2020.

The plaintiff, both on behalf of Matejek as administratrix of her estate and in her individual capacity, in which

she seeks damages for loss of consortium, filed a complaint against the defendants for Matejek’s treatment

at Regency House and death, alleging twelve counts of

wrongful death under General Statutes § 52-555, based

on medical negligence and medical recklessness. Specifically, the plaintiff alleged that the defendants were

negligent and/or reckless in that they failed to obtain

immediate medical treatment for Matejek’s injuries,

which required surgical intervention; failed initially to

report the fall; failed to treat Matejek’s pain; failed to

obtain necessary medical treatment for two days; failed

to implement the plan of care for Matejek prior to the

fall; and failed to provide the physician-ordered physical

therapy after Matejek returned to Regency House from

the hospital.

The defendants moved to dismiss the complaint, claiming immunity from suit pursuant to Executive Order

No. 7V on the ground that the order applied to ‘‘acts

or omissions undertaken because of a lack of resources,
attributable to the COVID-19 pandemic, that renders the

health care professional or health care facility unable

to provide the level or manner of care that otherwise

would have been required in the absence of the COVID19 pandemic and which resulted in the damages at

issue . . . .’’ In support of their motion to dismiss, the

defendants submitted an affidavit from Donna Dwyer,

the Director of Nursing at Regency House from May,

2017, to January, 2021, detailing the administrative challenges caused by the sudden appearance of the new

virus. These obstacles included, but were not limited

to, adapting to frequent changes in COVID-19 guidance,

staff shortages due to virus exposure, shortages of personal protective equipment, increased phone call volume, the weakened condition of Regency House residents,

and increased requests for nurse evaluations. Dwyer

averred that, during the week of Matejek’s fall, Regency

House ‘‘was at the height of its first COVID-19 outbreak.’’ Although Dwyer did not provide any details

as to the actual treatment provided to Matejek, the

defendants argued that they treated her while supporting the state’s COVID-19 response, thus rendering them

immune from liability under Executive Order No. 7V.

The defendants reasoned that the governor intended

the order to be far-reaching to ensure that health care

workers did not fear legal repercussions when making

good faith efforts to treat COVID-19 patients.

The plaintiff objected to the motion to dismiss, asserting

that Matejek’s injuries did not involve any connection to

COVID-19 treatment, placing the defendants’ activities

outside of the protections of Executive Order No. 7V.

The plaintiff acknowledged that Dwyer’s affidavit

broadly and accurately explained the defendants’

COVID-19 protocols and the effects of the pandemic

on Regency House but argued that the defendants had

failed to provide the trial court with any evidence

regarding how COVID-19 specifically impacted the care

that Matejek received.2 Further, the plaintiff reasoned

that the defendants’ proposed interpretation of Executive Order No. 7V would unreasonably shield health

care actors from liability, regardless of whether the

medical treatment in question was connected to the

pandemic.

The trial court denied the motion to dismiss, citing

the decision in Mills v. Hartford HealthCare Corp.,

judicial district of Hartford, Docket No. CV-20-6134761-

S (September 27, 2021) (Budzik, J.), as particularly

persuasive for narrowly applying the scope of Executive

Order No. 7V only to ‘‘instances involving the treatment

of COVID-19 patients.’’ The defendants then sought certification to appeal3 pursuant to General Statutes § 52-

265a and Practice Book § 83-1, which the Chief Justice granted.

On appeal, the defendants claim that the trial court

incorrectly determined that they were not immune from
suit and liability under Executive Order No. 7V for their

alleged acts and omissions and, therefore, improperly

denied their motion to dismiss. The defendants argue

that the trial court’s narrow interpretation of Executive

Order No. 7V as applying only to the diagnosis and

treatment of COVID-19 patients conflicts with the

explicit language and purpose of Executive Order No.

7V. More specifically, the defendants argue that the trial

court’s interpretation renders superfluous the ‘‘lack of

resources’’ language in the executive order and adds a

requirement—that the tort claimant have COVID-19—

not found in the order. Instead, the defendants rely

on the governor’s various statements of intent,4 which,

according to the defendants, show that the purpose

of Executive Order No. 7V was not to encourage the

treatment of COVID-19 patients per se but to increase

the state’s available health resources to provide health

care for all patients, regardless of whether they are

being treated for COVID-19.

In response, and without any supporting citation,5

the plaintiff contends that the purpose of Executive

Order No. 7V was to encourage the mass participation of

medical providers in Connecticut’s health care facilities

because the biggest obstacle to such participation in

March, 2020, was the highly unknown nature of COVID19, how it was transmitted, and how to diagnose and

treat it. According to the plaintiff, this led health care

providers to be concerned about facing litigation for

the misdiagnosis or mistreatment of such an unknown

disease. As a result, the plaintiff asserts, Executive

Order No. 7V sought to solve this problem by granting

immunity for the good faith diagnosis or treatment of

COVID-19. The plaintiff asserts that the defendants

offered no evidence to establish that the alleged acts

or omissions had any direct relation to the diagnosis

or treatment of COVID-19. Alternatively, the plaintiff

argues, even if the order could be construed not to

require a diagnosis and/or treatment directly related to

COVID-19, when, as in the present case, the alleged

acts or omissions are due to a ‘‘lack of resources’’ attributable to the pandemic, the defendants must demonstrate a nexus between the alleged acts or omissions

and the ‘‘lack of resources,’’ which, the plaintiff alleges,

the defendants in the present case did not establish.

‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of

action that should be heard by the 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 conclusion and

resulting [determination] of the motion to dismiss will

be de novo.’’ (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).

When deciding a motion to dismiss for lack of subject
matter jurisdiction pursuant to Practice Book § 10-30

(a) (1), if, as here, ‘‘the complaint is supplemented by

undisputed facts established by affidavits submitted in

support of the motion to dismiss . . . the trial court

. . . may consider these supplementary undisputed

facts and need not conclusively presume the validity

of the allegations of the complaint. . . . [But] if the

allegations of the complaint and the supplementary

facts produced by the defendant do not conclusively

establish that jurisdiction is lacking, the court must

deny the motion to dismiss. Unless the resolution of

the motion to dismiss has required the trial court to

resolve factual disputes, our review of a trial court’s

ruling on a motion to dismiss is plenary.’’ (Citations

omitted; internal quotation marks omitted.) Mills v.

Hartford HealthCare Corp., supra, 347 Conn. 542–43.

In the present case, resolution of the defendants’ claim

requires us to construe the scope of the immunity Executive Order No. 7V conferred. In Mills, this court addressed

the principles that govern the interpretation of executive orders: ‘‘[A]pplying the principles of statutory interpretation to [an] executive order is [appropriate]

because [such an] order has the full force and effect

of law . . . and, therefore, [we] apply the usual principles of statutory interpretation to our construction of

Executive Order No. 7V.’’6

(Citations omitted; footnote

omitted; internal quotation marks omitted.) Id., 543–44.

Executive Order No. 7V, § 6, provides in relevant part:

‘‘Notwithstanding any provision of the Connecticut

General Statutes or any other state law, including the

common law, or any associated regulations, rules, policies, or procedures, any health care professional or

health care facility shall be immune from suit for civil

liability for any injury or death alleged to have been

sustained because of the individual’s or health care

facility’s acts or omissions undertaken in good faith

while providing health care services in support of the

[s]tate’s COVID-19 response, including but not limited

to acts or omissions undertaken because of a lack of

resources, attributable to the COVID-19 pandemic, that

renders the health care professional or health care

facility unable to provide the level or manner of care

that otherwise would have been required in the absence

of the COVID-19 pandemic and which resulted in the

damages at issue, provided that nothing in this order

shall remove or limit any immunity conferred by any

provision of the Connecticut General Statutes or other

law.’’ (Emphasis added.) At issue in the present case

is the meaning of the ‘‘lack of resources’’ clause.

In interpreting the language at issue, we begin with

this court’s decision in Mills, which interpreted a different phrase of Executive Order No. 7V. Specifically, in

Mills, the parties disputed the meaning of the phrase

in Executive Order No. 7V, ‘‘any health care professional

or health care facility shall be immune from suit for
civil liability for any injury or death alleged to have

been sustained because of the individual’s or health

care facility’s acts or omissions undertaken in good

faith while providing health care services in support of

the [s]tate’s COVID-19 response . . . .’’ The plaintiff in

Mills had argued in the trial court that the immunity

afforded by Executive Order No. 7V applies to acts or

omissions undertaken only while the defendants were

actually providing health care services in support of the

state’s COVID-19 response and thus that the defendants

were not immune from suit for acts or omissions they

undertook while they were solely providing other health

care services, i.e., those that were not in support of the

state’s COVID-19 response. Mills v. Hartford HealthCare Corp., supra, 347 Conn. 539–40. The trial court

agreed with the plaintiff and denied the defendants’

motions to dismiss as to any claim not premised on the

diagnosis or treatment of COVID-19. Id., 541.

On appeal, this court determined that the language

of the immunity provision of Executive Order No. 7V

was ‘‘reasonably susceptible to a range of reasonable

interpretations. The narrowest interpretation would

understand the phrase ‘while providing health care services in support of the [s]tate’s COVID-19 response’ to

mean that a health care provider is immune from suit

and liability only for acts or omissions undertaken while

treating the injured party for COVID-19. Under the

broadest interpretation, the phrase reasonably could

mean that a health care provider is immune from suit

and liability for any acts or omissions undertaken during

the period in which the health care provider is providing

services in support of the state’s COVID-19 response

(i.e., while those services coincide with the effective

period of the declared public health emergency),

regardless of whether the acts or omissions are connected to those services. Between these two extremes,

the phrase also reasonably could mean that immunity

applies when the acts or omissions causing the injury

were connected to the health care provider’s services

in support of the state’s COVID-19 response, even if the

health care provider was not treating the injured party

for COVID-19.’’ Id., 546.

In light of this ambiguity, this court in Mills considered as interpretive guidance the circumstances surrounding the executive order’s promulgation and the

public policy that it was designed to implement.7 See id.

Relying on these circumstances and public policy concerns, the court concluded that ‘‘[t]he evident purpose

of the immunity provision of Executive Order No. 7V

was to facilitate the implementation of these policies

by assuring the relevant health care professionals and

facilities that, in light of the uncertainties surrounding

the diagnosis, treatment, and prevention of COVID-19,

and in view of the compelling need to keep health care

facilities open and operating, they would not be held

liable for such acts and omissions, as long as they acted
in good faith and in support of the state’s COVID-19

response.’’ (Footnote omitted.) Id., 550.

In light of this underlying purpose, we rejected the

plaintiff’s interpretation of the executive order because

it would fall far short of fulfilling the public policy

underlying the order—namely, ‘‘to allow health care

facilities to provide [health care services in support of

the state’s COVID-19 response] without the fear of being

subjected to lawsuits.’’ Id., 551. We also rejected the

defendants’ argument that the immunity provision of

Executive Order No. 7V provides immunity for all

actions and omissions undertaken by health care professionals and facilities during the period they were

providing services in support of the state’s COVID-19

response because such an interpretation would provide

unintended relief to health care providers and facilities

by exceeding the purpose of the executive order to

provide immunity for acts or omissions that have no

connection to COVID-19. Id. Rather, this court determined that the order’s language meant that ‘‘immunity

applies when the acts or omissions [alleged to have

caused] the injury were connected to the health care

provider’s services in support of the state’s COVID19 response, even if the health care provider was not

treating the injured party for COVID-19.’’ Id., 546.

We also explained in Mills that other provisions of

the order supported this interpretation because the language of the ‘‘lack of resources’’ clause ‘‘plainly requires

the act or omission to have a connection to the COVID19 pandemic for immunity to apply.’’ Id., 554. This court

reasoned that, ‘‘[i]f all a defendant has to do to establish

immunity under that clause is prove that the pertinent

act or omission occurred during the relevant period

when it was providing COVID-19 support services, and

is not required to establish that the act or omission was

connected to the provision of those services, then the

specific circumstances that fall within the ‘including

but not limited to [lack of resources]’ clause would be

rendered entirely superfluous. . . . The nature of or

reason for the act or omission (a lack of resources or

any other relevant reason) would not matter, only when

it occurred.’’ (Citation omitted.) Id.

Thus, we concluded in Mills that the plain language

of the ‘‘including but not limited to [lack of resources]’’

clause of Executive Order No. 7V’s immunity provision

requires the acts and/or omissions at issue to have a

connection to the COVID-19 pandemic for immunity to

apply. But our decision in Mills did not require us to

determine precisely the degree of connection between

the acts and/or omissions at issue and the COVID-19

pandemic. The plain and unambiguous language of the

‘‘lack of resources’’ clause, however, manifests an intent

that, for immunity to apply, the defendants must establish that (1) there was a lack of resources, absent an

assertion of another relevant circumstance, attributable
to the COVID-19 pandemic, and (2) this lack of resources

caused the acts and/or omissions at issue. Specifically,

the phrase ‘‘attributable to the COVID-19 pandemic’’

directly modifies the phrase, ‘‘a lack of resources,’’ as

is evident by the placement of the commas and by the

fact that this phrase cannot reasonably modify any other

portion of the executive order. See Indian Spring Land

Co. v. Inland Wetlands & Watercourses Agency, 322

Conn. 1, 16, 145 A.3d 851 (2016) (court may discern

‘‘plain meaning of statute on basis of ‘grammatical structure of the statute’ ’’). As a result, this language clearly

requires the defendants to show that the COVID-19 pandemic caused a specific lack of resources. Additionally,

the phrase, ‘‘because of a lack of resources,’’ directly

modifies the phrase, ‘‘acts or omissions undertaken’’ in

Executive Order No. 7V; see Connecticut Ins. Guaranty

Assn. v. Drown, 314 Conn. 161, 189, 101 A.3d 200 (2014)

(‘‘[i]t is well recognized that, whenever possible, a modifier should be placed next to the word it modifies’’

(internal quotation marks omitted)); with the phrase,

‘‘because of,’’ denoting a causal relationship. See Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn.

779, 787, 900 A.2d 18 (2006) (defining ‘‘because of’’ as

‘‘[o]n account of; by reason of’’ or ‘‘[f]or the reason that;

since’’ (internal quotation marks omitted)); Webster’s

Third New International Dictionary (2002) p. 194 (defining ‘‘because’’ as ‘‘since . . . for the reason that . . .

on account of the cause that—used to introduce dependent clauses’’); see also University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 350, 133 S.

Ct. 2517, 186 L. Ed. 2d 503 (2013) (defining ‘‘because

of’’ as requiring but for cause); Koch Foods, Inc. v.

Secretary, United States Dept. of Labor, 712 F.3d 476,

481 (11th Cir. 2013) (‘‘[t]he word ‘because’ suggests a

causal connection’’). As a result, this language clearly

requires the defendants to show that a specific lack of

resources attributable to COVID-19 caused the acts and/

or omissions at issue.

This level of specificity is in line with our interpretation of the executive order’s ‘‘while providing health

care services’’ clause in Mills. The public policy rationale for limiting immunity to acts or omissions connected to the health care provider’s services in support

of the state’s COVID-19 response equally applies here

based on the phrase, ‘‘including but not limited to,’’

showing that the ‘‘lack of resources’’ clause is an example of a circumstance that would qualify for immunity

under the ‘‘while providing health care services in support of the [s]tate’s COVID-19 response’’ clause, and

thus must be consistent. See Anderson v. Pension &

Retirement Board, 167 Conn. 352, 355, 355 A.2d 283

(1974) (‘‘the phrase ‘including but not limited to’ . . .

contains words of illustration, not limitation’’). Failing

to require a connection between the specific lack of

resources at issue and the acts and/or omissions alleged

would provide relief to health care providers and facili-
ties unrelated to the purpose of the order. See Mills

v. Hartford HealthCare Corp., supra, 347 Conn. 551.

However, requiring that the acts or omissions relate to

the diagnosis or treatment of COVID-19 would undermine the governor’s stated intent to provide protection

to health care workers and facilities.8 See id., 550.

Rather, as with the ‘‘providing health care services’’

clause, to be entitled to immunity, a defendant must

establish a direct connection between the alleged acts

and/or omissions and the lack of resources at issue.

See 777 Residential, LLC v. Metropolitan District

Commission, 336 Conn. 819, 828, 251 A.3d 56 (2020)

(‘‘[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)).

This interpretation of the ‘‘lack of resources’’ clause

is consistent with the language of the immunity provision as a whole. Specifically, the clause at issue goes

on to clarify that the alleged acts and/or omissions are

caused by the lack of resources when the lack of

resources ‘‘renders the health care professional or

health care facility unable to provide the level or manner

of care that otherwise would have been required in the

absence of the COVID-19 pandemic . . . .’’ Executive

Order No. 7V, § 6 (April 7, 2020). This language eliminates any possibility that the governor intended the

immunity afforded by Executive Order No. 7V to apply

only to the diagnosis and treatment of COVID-19

patients because, before the COVID-19 pandemic, there

was no established level of care for COVID-19 patients,

as there were no COVID-19 patients. This language then

must refer to the standard of care that would have been

applied to patients requiring non-COVID-19 health care

prior to the pandemic, as compared to patients who,

during the pandemic, also required non-COVID-19

health care.

Applying this interpretation of Executive Order No.

7V to the present case, we conclude that the trial court

properly denied the defendants’ motion to dismiss. Specifically, the defendants failed to establish that a particular lack of resources due to the COVID-19 pandemic

caused the alleged acts and/or omissions. It is true that

the defendants provided an affidavit by Dwyer to establish that the COVID-19 pandemic created vast difficulties for the defendants—staff shortages due to virus

exposure, shortages of personal protective equipment,

increased phone call volume, weakened condition of

Regency House residents, and increased requests for

nurse evaluations. Thus, the defendants offered evidence

of a lack of specific resources and that the COVID-19

pandemic caused this lack of resources. But there is

no evidence in the record about how the lack of these

specific resources specifically related to the defendants’

alleged actions and/or omissions that caused Matejek’s

injuries. For example, the defendants provided no evidence regarding how the lack of these resources led to
the defendants’ failing to implement Matejek’s health

program, leading to her fall. They also supplied no evidence regarding how the lack of these resources related

to the defendants’ failure to provide Matejek treatment

for two days.9 Finally, the defendants advanced no evidence regarding how the lack of these resources connects to the defendants’ alleged failure to provide

Matejek with proper treatment after she left the hospital

and returned to Regency House.

The defendants could have requested, but failed to

request, an evidentiary hearing to prove these jurisdictional facts—namely, the connection between the specific lack of resources and the alleged acts and omissions

regarding the defendants’ care of Matejek. ‘‘[W]here a

jurisdictional determination is dependent on the resolution 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. . . . 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; footnotes omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn.

652–54. Thus, when an open factual dispute remains

on the record before the trial court, the court properly

denies a motion to dismiss. See id., 654 (‘‘we conclude

that the trial court properly denied the state’s motion

to dismiss because, on the record before the court, an

open factual dispute remained as to the motivations

underlying the termination of the plaintiffs’ employment’’).

Based on the record before the trial court in the

present case, facts necessary to establish the immunity

defense remained unproven: the connection between

the alleged acts and omissions and the alleged lack of

resources. Therefore, we conclude that, although the

trial court incorrectly narrowed the scope of Executive

Order No. 7V, it correctly denied the defendants’ motion

to dismiss.

The trial court’s denial of the defendants’ motion to

dismiss is affirmed.

In this opinion the other justices concurred.

* August 8, 2023, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 We note that the case captions in the trial court, the Appellate Court

and this court list Manginelli as the conservator of the decedent’s estate.

Subsequent to the decedent’s death on December 29, 2020, the Probate

Court on March 16, 2021, appointed Manginelli the administratrix of the

decedent’s estate. For simplicity, we refer in this opinion to Manginelli, in

both her individual capacity and as administratrix of the decedent’s estate,

as the plaintiff.

2 At no point did the defendants or the plaintiff move for a pretrial evidentiary hearing. See Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).

3 The defendants also initially claimed that the opinion letter attached to

the plaintiff’s complaint, as required by General Statutes § 52-190a, did not

provide sufficient information to determine the relevant qualifications of

their health care provider, thus warranting dismissal of the complaint. The

trial court ruled that this claim was moot after the plaintiff submitted an

amended opinion letter.
4 At the beginning of Executive Order No. 7V, the governor detailed the

purpose of the order: ‘‘WHEREAS, on March 10, 2020, I issued a declaration

of public health and civil preparedness emergencies, proclaiming a state of

emergency throughout the [s]tate of Connecticut as a result of the coronavirus disease 2019 (COVID-19) outbreak in the United States and confirmed

spread in Connecticut; and . . . WHEREAS, COVID-19 is a respiratory disease that spreads easily from person to person and may result in serious

illness or death; and . . . WHEREAS, the critical need to limit the spread

of COVID-19 requires the enforcement of distancing and other protective

measures in all workplaces; and . . . WHEREAS, there exists a compelling

state interest in rapidly expanding the capacity of health care professionals

and facilities to provide care during the COVID-19 pandemic; and WHEREAS,

providing relief from liability for such health care professionals for good

faith efforts to provide care during the COVID-19 pandemic will greatly

increase the state’s ability to achieve such an expansion . . . .’’

5 We presume that the plaintiff is relying on the following statement of

intent by the governor in Executive Order No. 7V, which the defendants

do not rely on: ‘‘WHEREAS, numerous medical professionals, after having

completed the educational requirements for their profession, are permitted

to temporarily practice their profession under the supervision of a licensed

practitioner prior to being licensed; and WHEREAS, such professionals’

ability to temporarily practice their profession may expire prior to the end

of the public health and civil preparedness emergency; and WHEREAS,

necessary public health protective measures enacted in response to the

COVID-19 pandemic may prevent such professionals from completing their

licensing requirements during the public health and civil preparedness emergency; and WHEREAS, to maintain and expand the healthcare workforce

capacity for COVID-19 response and mitigation efforts, it is necessary to

allow such professionals to continue to work in such temporary, supervised

status for the duration of the declared civil preparedness and public health

emergency . . . .’’

6 We note, however, as we did in Mills, that ‘‘[t]he Appellate Court . . .

[previously] determined that the plain meaning rule set forth in General

Statutes § 1-2z applied to its interpretation of an executive order. . . . We

have some doubt about this conclusion, not only because § 1-2z on its

face applies only to statutes, but also because the judicial interpretation of

executive orders may involve different considerations than those implicated

when we interpret legislation. We need not determine in the present case,

however, whether construction of a clear and unambiguous executive order

would be subject to the constraints imposed by § 1-2z . . . .’’ (Citation

omitted.) Mills v. Hartford HealthCare Corp., supra, 347 Conn. 543 n.12.

7

‘‘The circumstances existing at the beginning of the worldwide COVID19 pandemic are well known. Although it was clear by early 2020 that COVID19 was a dangerous and highly contagious disease, the mechanisms of the

disease, its symptomatology, the methods by which the virus spread, and

effective strategies for treatment, control, and prevention were all poorly

understood. . . . It was widely believed in March, 2020, that medical providers and hospitals throughout the United States were about to be overwhelmed

with COVID-19 patients. . . . Confronted with these circumstances,

on March 10, 2020, Governor Lamont declared a public health emergency

and a civil preparedness emergency throughout the state pursuant to General

Statutes §§ 19a-131a and 28-9. . . . Governor Lamont formally declared that

it was necessary to supplement Connecticut’s health care workforce and

the capacity of health care facilities to deliver [lifesaving] care by requesting

the assistances of health care professionals who [had] not previously maintained liability coverage; facilitating the deployment of volunteer and outof-state professionals; and calling [on health care] professionals to perform

acts that they would not perform in the ordinary course of business . . . .

Governor Lamont further determined that . . . to encourage maximum participation in efforts to expeditiously expand Connecticut’s health care workforce and facilities capacity, there exists a compelling state interest in

affording such professionals and facilities protection against liability for

good faith actions taken in the course of their significant efforts to assist

in the state’s response to the current public health and civil preparedness

emergency . . . .’’ (Citations omitted; footnotes omitted; internal quotation

marks omitted.) Mills v. Hartford HealthCare Corp., supra, 347 Conn.

546–50.

8 The plaintiff argues that the plain language of the order as a whole

supports her interpretation. Specifically, according to the plaintiff, the language, ‘‘while providing health care services in support of the [s]tate’s
COVID-19 response,’’ mandates a direct relationship between the treatment

in question and COVID-19 before immunity can attach and that this limitation

likewise applies to the ‘‘lack of resources’’ clause. We already have rejected

this argument in Mills, however, as previously discussed.

9 The result of this case may well have been different, for example, if, in

her affidavit, Dwyer had averred that, when the decedent was hurt, the

defendants’ employees called all the local hospitals to discover if any had

a free bed but were told that there were no open beds due to high volume

of COVID cases, and that, because of this, the defendants’ employees could

not take the decedent to the hospital any sooner than they had done so.