Opinion
No. FST CV 01 0186827
May 10, 2005
MEMORANDUM OF DECISION
INTRODUCTION
The plaintiffs, Jaime Silverio Tello Brito and Gloria Quezada filed a seven-count, second revised complaint dated June 12, 2002 against the defendants Percy Montes, Joel Vasquez, Juan C.M. Rios and Barchella Equities, Inc. This action arises out of a motor vehicle collision that occurred in Greenwich on June 19, 2001, which accident allegedly caused severe personal injuries and damages to Brito.
The summary judgment motion presently before the court is brought only by Percy Montes and Joel Vasquez.
The facts giving rise to the action are not in dispute. At the time of the accident, Brito was a passenger in a pickup truck operated by his co-employee, Vasquez. Their employer, Montes, owned the truck. Brito and Vasquez were employees of Primo Landscaping, Inc., a business owned by Montes and his wife with a place of business in the state of New York. The collision occurred while Brito, Vasquez, and others were returning from a job site in Rye Brook, New York. On the date of the accident, Brito, Vasquez, and Montes were all New York residents. Two of the defendants are Brito's co-employee, Vasquez, and his employer, Montes.
The defendants' summary judgment motion is addressed to counts one, two, three, and seven of the plaintiffs' revised complaint. In count one, Brito alleges that Vasquez negligently operated the pickup truck causing the collision and Brito's subsequent injuries. In count two, Brito alleges that Vasquez recklessly operated the pickup truck causing the collision and Brito's injuries. In count three, Brito alleges that Montes is vicariously liable for the actions of Vasquez, in that he owned the truck and gave Vasquez authority to drive it. Finally, in count seven, Quezada, Brito's spouse, claims to have suffered a loss of consortium resulting from Brito's injuries.
In their answer and special defenses filed on December 15, 2004, the defendants Vasquez and Montes denied the material allegations of the revised complaint, and asserted by way of special defense that Brito's claims were barred by New York workers' compensation laws. The plaintiff denied the special defense by pleading filed on that same date.
On January 3, 2005, Vasquez and Montes moved for summary judgment on counts one, two, three and seven of the revised complaint asserting that the workers' compensation laws of New York apply to the present action. They further claim that New York workers' compensation law does not permit a negligence action for personal injuries against a co-employee when those injuries are sustained during the course of employment. Brito and Quezada filed an objection to the summary judgment motion primarily claiming that Connecticut law applies and that their claims against the co-employee and the employer are legally sufficient under the Connecticut workers' compensation laws.
DISCUSSION
"Practice Book . . . § 17-49 . . . provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, CT Page 8298 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Vasquez and Montes move for summary judgment on counts one, two, three, and seven of the complaint. In opposing the motion on those counts, Brito and Quezada claim that there is a genuine issue of material fact as to whether or not Brito was injured while working for Montes. If he was not injured in the course of his employment, then neither the Connecticut nor New York workers' compensation statutes would apply, and Brito and Quezada would not be barred from pursuing a personal injury action against Vasquez and Montes.
Although summary judgment had previously been denied on the same counts upon which Vasquez and Montes now move, they argue that the Appellate Division's recent holding in Snyder v. Seldon, 81 Conn.App. 718, 841 A.2d 701 (2004), alters the court's prior determination regarding summary judgment. Accordingly, the court reviews Vasquez and Montes' renewed motion for summary judgment. "[I]t is within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where . . . additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 262, 532 A.2d 1302 (1987).
In support of their motion for summary judgment, Vasquez and Montes have supplied the court with the affidavit of Barbara Montes, Vice President of Primo's Landscaping. Therein, she states, "[a]t the time of the accident on June 19, 2001, Primo's Landscaping, Inc. had in effect workers' compensation insurance in accordance with the laws of the State of New York. Brito has filed a claim for workers' compensation benefits in the State of New York against Primo's Landscaping, Inc. for injuries Brito received in the subject accident. Brito has received workers' compensation benefits pursuant to this claim in accordance with New York workers' compensation law."
Under New York's workers' compensation law, an employer must compensate "his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment . . ." (Emphasis added.) N.Y. Work. Comp. Law § 10 (McKinney 2005).
The plaintiffs have not submitted either a counteraffidavit of Brito or any other sufficient evidence demonstrating that he has not received compensation benefits under New York law as set forth in Montes' affidavit. The plaintiffs have failed to meet their burden to provide an evidentiary basis supporting their bare assertion that there is a material issue of fact as to whether the incident at issue gave rise to a compensable claim. Consequently, the court accepts as undisputed that Brito has received workers' compensation benefits under New York law for the incident at issue.
Although there remains no genuine issue of material fact as to whether Brito suffered a compensable injury, it still must be determined whether the workers' compensation laws of Connecticut or New York apply to the present action. Brito and Quezada contend that the court should apply Connecticut workers' compensation law as Brito's injury occurred in Connecticut. Furthermore, they argue that because there is a criminal matter pending in Connecticut related to this incident, Connecticut has the greater interest.
In Snyder v. Seldin, 81 Conn.App. 718, 841 A.2d 701 (2004), the Appellate Court applied New York workers' compensation law, although both the place of injury and the employer's headquarters were in Connecticut. The court held that such factors did not outweigh New York's substantial interest in compensating an injured New York resident, who under New York law was precluded from bringing a negligence action against a fellow employee, who also was a New York resident, for injuries sustained in the course of their New York-based employment.
In making its determination, the court first applied the interests analysis approach. It noted that "[a]lthough the accident did occur in Connecticut, our Supreme Court has expressly adopted an interests analysis over the place of injury rule . . . in conflict of laws cases such as this . . . As a result, although the place where the injury occurred might be one factor to consider, it is not dispositive of the issue and clearly does not outweigh New York's interests." (Citation omitted) Id., 723. After weighing all of the determining factors, such as the place of injury, the place of residence, and the place of employment, the court determined that New York's interest was more clear and legitimate than Connecticut's.
Similar to the plaintiff and the co-employee defendant in Snyder v. Seldin, Vasquez, Montes, and Brito were all residents of New York at the time of the accident. Primo's Landscaping is located in New York and Brito's principal place of employment was also New York. Connecticut's only real connection to this claim is that it is the place of injury and the related criminal proceeding. Under these facts, the parties clearly had an expectation that they would be entitled to the rights, privileges, and immunities afforded to them under New York law. Accordingly, New York has the greater interest in having its law applied.
The court in Snyder v. Seldin went further than a mere interests analysis in its decision and looked to the Restatement (Second) of Conflict of Laws in considering whether it could constitutionally apply the laws of New York. Under the Restatement, "[a] State of the United States may consistently with the requirements of due process award relief to a person under its workmen's compensation statute, if (a) the person is injured in the State, or (b) the employment is principally located in the State, or (c) the employer supervised the employees activities from a place of business in the State, or (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen's compensation under the rules of §§ 187-88 and 196, or (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen's compensation act of the State, or the State has some other reasonable relationship to the occurrence, the parties and the employment." 2 Restatement (Second), Conflict of Laws § 181, p. 537 (1971). The court concluded that under the facts "New York law clearly is available under subsections (b), (c) and (f) of the Restatement." Snyder v. Seldin, supra, 81 Conn.App. 725.
The court also considered Professor Larson's treatise on Workers' Compensation. Quoting the Supreme Court in Simaitis v. Flood, 182 Conn. 24, 34, 437 A.2d 828 (1980), the court noted, "[a]ccording to Professor Larson, the applicable law in a workers' compensation case is the law of the place of the employment relation, because the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation." (Internal quotation marks omitted.) Snyder v. Seldin, supra, 81 Conn.App. 725. Despite the employer's corporate headquarters being located in Connecticut, the court concluded that "the employment relation clearly existed in New York, which was where the parties lived and where the plaintiff principally was employed." Id. Accordingly, the court applied New York law.
New York Workers' Compensation Law § 29(6) provides that "[t]he right to compensation or benefits . . . shall be the exclusive remedy to an employee, or in the case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ . . ." (Emphasis added.) Furthermore, New York courts have explicitly interpreted this provision to bar both negligence and reckless actions against co-employees. "It is well settled that . . . Workers' Compensation Law § 29(6) precludes suit against a fellow employee based on his negligence . . ." Chiriboga v. Ebrahimoff, 281 App.Div.2d 353, 722 N.Y.S.2d 533, 534 (2001). "Taking the plaintiff's allegations as true, the defendants' conduct amounted, at most, to gross negligence or reckless conduct. The plaintiff's remedy for such a wrong is that provided in the Workers' Compensation Law . . ." (Citations omitted.) Gagliardi v. Trapp, 221 App.Div.2d 315, 633 N.Y.S.2d 387, 388 (1995). In view of the foregoing, summary judgment is granted as on the first and second counts brought by Brito against Vasquez for the reason that New York law precludes the negligence and reckless actions therein.
In count three, Brito alleges that Montes is vicariously liable for Vasquez's negligent and reckless conduct. In such cases, however, New York courts have held that where the driver is statutorily immune from suit, the owner of the vehicle cannot be held vicariously liable.
In Tikhonova v. Ford Motor Co., 10 App.Div.3d 185, 779 N.Y.S.2d 47, 50-51, app. granted, 783 N.Y.S.2d 280 (2004), the Appellate Division explained the reasoning behind this rule. It noted, "[t]he unmistakable intention of the Legislature to make only one remedy available to an employee injured in the course of his employment by a fellow employee is manifested by the use of the emphatic language `exclusive remedy.' The statute, having deprived the injured employee of a right to maintain an action against a negligent co-employee, bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided . . ." (Citation omitted; internal quotation marks omitted.) Therefore, pursuant to the laws of New York, Montes is not vicariously liable for Vasquez's conduct and summary judgment is granted as to count three.
The same holds true for Quezada's loss of consortium claim alleged in count seven. As loss of consortium is a derivative claim, it cannot stand. See Constantine v. Sperry Corp., 149 App.Div.2d 394, 539 N.Y.S.2d 499 (1989).
CONCLUSION
In conclusion, summary judgment is granted as to counts one, two, three and seven. There is no genuine issue as to whether Brito's injuries arose out of and occurred during the course of his employment. Moreover, under the applicable New York law, Brito and Quezada have not set forth actionable claims.
TYMA, J.