Opinion
FBTCV156051716S
02-24-2017
Lea Dalomba v. BML Tool & Mfg. Corp
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendant BML Tool & Mfg. Corp. (" BML") has moved for summary judgment to dismiss this case brought by plaintiff Lea Dalomba (" Dalomba") alleging that she was injured when she slipped and fell in an icy parking lot at BML's plant. BML has asserted that Dalomba may not bring a tort case against BML because it is her " employer" entitled to invoke the bar against personal injury lawsuits under the Workers' Compensation Act, C.G.S. § 31-284(a), which provides " [a]n employer . . . shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his [or her] employment." Dalomba was a temporary worker assigned to work at BML employed by a temporary agency, Micro Tech Staffing (" Micro Tech"), which had a staffing services agreement with BML. This motion raises the issue of whether the " dual employer" doctrine applies in Connecticut. For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
The Split Among the Courts Concerning the Dual Employer Doctrine
Under the " dual employer" doctrine a temporary worker may be considered employed both by the temporary agency and the client of that agency to which he or she is assigned. See Crespo v. Bagl, Inc., 2009 WL 5322400 *4 (Conn.Super. 2009) (Tobin, J.) [49 Conn.L.Rptr. 82, ] (" when an employee is simultaneously employed by two employers, as a matter of law, each is his employer"). There is no clear-cut decision by the Supreme Court or Appellate Court as to whether the " dual employer" doctrine applies in Connecticut in the context of the Workers' Compensation Act. Id. Accord, Long v. Pennant Foods Co., LLC, 2013 WL 3388914 *5 (Conn.Super. 2013) (Wilson, J.) [56 Conn.L.Rptr. 369, ], and Villa v. FCT Electronic, L.P., 2014 WL 1395035 *4 (Conn.Super. 2014) (Roche, J.) [57 Conn.L.Rptr. 799, ]; Moreno v. Thermospas, Inc., 2001 WL 292153 *2 (Conn.Super. 2001) (Doherty, J.) [29 Conn.L.Rptr. 97, ].
Proponents of the " dual employer" doctrine cite Taylor v. St. Paul's Universalist Church, 109 Conn. 178, 145 A. 887 (1929), for the proposition that Connecticut has recognized the " dual employer" doctrine for many years. See 19 Conn. Prac., Workers' Compensation § 15:26 (2016 ed.). In Taylor the Supreme Court of Errors, in upholding compensability of a claim under workers' compensation, stated " one may hold the legal relation of employee to more than one employer at the same time . . ." 109 Conn. at 182.
Often the issue of whether the " dual employer" doctrine applies has arisen in cases where the defendant has asserted immunity from liability for personal injuries as an " employer" entitled to exclusivity under the Workers' Compensation Act, C.G.S. § 31-284(a). The Superior Court decisions are split on the applicability of Section 31-284(a) immunity to clients of temporary employment agencies. Compare Crespo, 2009 WL 5322400 *7, and Valliere v. Olmo, 2011 WL 3200257 *6 (Conn.Super. 2011) (Martin, J.), with Long v. Pennant Foods Co., LLC, 2013 WL 3388914 *5. See also Villa v. FCT Electronic, L.P., 2014 WL 1395035 *4, and Feliciano v. Atlantic Plywood Corp., 2016 WL 3912330 *3 (Conn.Super. 2016) (Noble, J.). See generally, 19 Conn. Prac., Workers' Compensation § 15:26.
The Courts in Villa, 2011 WL 3200257 *4, and Feliciano, 2016 WL 3912330 *3, note the split in Superior Court authority on application of the " dual employer" doctrine in a Workers' Compensation context. Both courts avoid deciding the issue definitively because they found material issues of fact concerning the application of the doctrine and denied the summary judgment motions before them. See also Moreno, 2001 WL 292153 *2-3. In Villa Judge Roche found that C.G.S. § 31-292 was applicable and that the " dual employer" doctrine has not been officially adopted in Connecticut but denied the motion for failure to sustain the burden of proving no genuine issue of material fact as to exclusivity under the Workers' Compensation Act. 2011 WL 3200257 *5.
The authors do a commendable job of summarizing the conflicting case law in this area but could not resist a little editorializing: " [a] consensus seems to be emerging that the answer is that an outsourced employee cannot sue the de facto employer who controls the work and at whose premises he was working when injured, even though he is being paid by the placement agency." 19 Conn. Prac. Workers' Compensation § 15:26. In 2013 the Long court quoted the same language, 2013 WL 3388914 *8 n.2, so it appears that this " consensus" analysis predated Long and the authors have decided to stick with their analysis of a trend despite the decisions in Long and Villa, two cases that call into question the application of the dual employer doctrine in a Workers' Compensation context, which are more recent cases than those cited by the authors as establishing the contradicted " consensus."
In Crespo Judge Tobin applied the right-to-control test to determine who is an " employer" as defined in C.G.S. § 31-275(10). The right-to-control test was used to establish the employer-employee relationship under the Workers' Compensation Act by the Supreme Court in Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d 834 (2000), and the Appellate Court in Hanson v. Transportation General, Inc., 45 Conn.App. 441, 443-44, 696 A.2d 1026, aff'd, 245 Conn. 613, 716 A.2d 857 (1998). After reviewing the law of other states and the leading treatise, Larson's Workers' Compensation § 68.01 (2007 ed.), Judge Tobin concluded Connecticut would follow the " dual employer" doctrine and find a person who hired a temporary worker from an agency could be an " employer" entitled to invoke tort immunity under the Workers' Compensation Act if the defendant could satisfy the three-prong test proposed in the Larson treatise:
Despite the lack of Connecticut precedent, a review of case law in other states demonstrates a general acceptance of the principle that an individual may have two employers at a given time and that in the context of temporary employment, exclusive remedy provisions of workers' compensation statutes apply to temporary employers who are deemed " employers, " under a right-to-control analysis. Courts often cite to Larson's treatise when deciding matters related to the exclusive remedy provision of workers' compensation statutes as applied to temporary employers. The court finds that the test provided in Larson's treatise to determine whether one has the status of an employer is the appropriate test to apply to the issue presented in this case.
The Larson test is stated as follows: " When a general employer lends an employee to a special employer, the special employer becomes liable for [workers'] compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for [workers'] compensation." 1C Larson, Workmen's Compensation § 48.00 (1982).
Crespo, 2009 WL 5322400 *7.
In Crespo Judge Tobin found that defendant satisfied all three prongs of the Larson test, including the first prong: an agreement between the putative employer and employee. " Although [the agency] and [its client] may have had a written contract to which the plaintiff was not a party, the facts of this case mandate the conclusion that an implied contract between the plaintiff and [the client] existed." [WL] at 7.
Judge Wilson took a different approach in Long, 2013 WL 3388914 *4-5, and concluded that the right-to-control test did not apply, the matter was controlled by the lent employee statute, C.G.S. § 31-92:
Connecticut General Statutes § 31-292 (the lent employee statute) states: " When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another." In interpreting any statute, § 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from 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, extra textual evidence of the meaning of the statute shall not be considered." Because the lent employee statute is unambiguous in its designation of the " lender" as employer, the statute should be interpreted pursuant to this plain meaning.
Judge Wilson held that the employment agency, and not its client, was deemed to continue as the plaintiff's " employer" under C.G.S. § 31-292 and thus the defendant client " is not entitled to the protection of the Workers' Compensation Act's exclusivity provision." [WL] at 4. He rejected the argument the right to control test determines employer status:
The defendant argues that § 31-292 does not apply to this case. Instead, the defendant contends that the right to control test and the dual employer doctrine apply, and that the defendant qualifies as the plaintiff's employer under those standards. With respect to the right to control test, the Connecticut Supreme Court has held that the lent employee statute, not the right to control test, determines employer liability. Specifically, the Supreme Court in Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 186 A. 641 (1936), stated: " [T]he Legislature, in 1931, adopted an amendment of the [workers' compensation] act . . . [currently § 31-292, the lent employee statute] . . . The right of direction and control of the employee is no longer the test in determining the question of liability for compensation, but such liability is in all cases imposed upon an employer who has " temporarily lent or let on hire" to another the services of one of his employees.
In Lucarelli, 121 Conn. at 642, the employer who temporarily loaned an employee sought to escape liability under the Workers' Compensation Act and shift the burden to the party who directed and controlled the employee at the time of his mortal injury. The Supreme Court of Errors applied what is now C.G.S. § 31-292 to hold the lending employer liable under the Act:
Judge Wilson observed that none of the opinions that recognized applicability of the " dual employer" doctrine, like Crespo or Valliere, cited C.G.S. § 31-292, or sought to reconcile the statute with the right-to-control test and the " dual employer" doctrine. Until there is controlling appellate authority, Judge Wilson declared " this court concludes that § 31-292 takes precedence. For these reasons, the court will apply § 31-292 to this case. As previously discussed, under the plain language of that statute, [the agency] was the plaintiff's employer. Thus, as a matter of law, the defendant is not protected by the Workers' Compensation Act exclusivity provision." Id.
Lucarelli, 121 Conn. at 642, was decided in 1936, five years after C.G.S. § 31-292 was enacted in 1931. The decision in Taylor, 109 Conn. 178, 145 A. 887, was decided in 1929. In Parsons, 114 Conn. at 150, a case that the Supreme Court indicated was legislatively overruled in Lucarelli, 121 Conn. at 642, the issue was whether the employer required to pay compensation under the Act was the lender of the plaintiff employee or the person who had control of the loaned employee: " [w]hile the status of a 'loaned employee' as such has not been heretofore specifically presented to this court, the general principle has been recognized that if the servant when injured is engaged in the work of a master who has the right of control over the work to be done, then the latter is the master within the meaning of our Compensation Act and liable to pay compensation." C.G.S. § 31-292 resolved the issue by holding the lending employer responsible for workers' compensation, which suggests the party who directed and controlled the actual work was not his or her " employer" under the circumstances. Presumably, outside the situation controlled by C.G.S. § 31-292, an employee could have two employers at the same time.
In Moreno, 2001 WL 292153 *2, Judge Doherty discussed how various statutes included within the Workers' Compensation Act may also come into play in determining who is an " employer" entitled to immunity under the Act. In addition to the loaned employee statute, C.G.S. § 31-292, Judge Doherty referred to C.G.S. § 31-284(a), which requires an employer to secure compensation benefits for its employees, and the principal employer statute, C.G.S. § 31-291, which provides a principal employer with immunity from suit so long as it has paid compensation benefits to its employees pursuant to C.G.S. § 31-293.
C.G.S. § 31-291 applies in a general contractor and subcontractor setting and provides: " When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. The provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee or his dependent under the provisions of section 31-293 to recover damages resulting from personal injury or wrongful death occurring on or after May 28, 1988, unless such principal employer has paid compensation benefits under this chapter to such injured employee or his dependent for the injury or death which is the subject of the action." The leading treatise explains how C.G.S. § 31-291 works in practice: " Thus principal employer immunity is now limited to principal employers who actually pay workers' compensation benefits to the injured employee; this happens ordinarily only when the subcontractor fails to carry workers' compensation insurance." 19 Conn. Prac., Workers' Compensation § 15:11.
There is no comparable statute extending immunity to clients of temporary agencies covered by C.G.S. § 31-292. A lent employee " on hire, " as the facts disclose is the case here, is by definition a circumstance where there is a shift in control of the work activities of the temporary employee from the lender with a " service contract" with the employee to another who does not have a direct relationship with the employee and is not the " employer" designated in C.G.S. § 31-292. Read together these statutes suggest that the employer of a lent employee is the agency with whom the employee contracted, and who has the burden to secure his or her compensation under C.G.S. § 31-293, and there is no statutory provision akin to the principal employer statute that would designate " employer" status or extend immunity to the agency's client. Outside the principal employer statute, C.G.S. § 31-291, there is no indication in the statutes of anyone other than the lent employee's employer under C.G.S. § 31-292 who is obligated to provide workers' compensation or entitled to immunity. Nor would there be a reason to do so under the statutory scheme because a lent employee for hire like plaintiff will always be working in furtherance of both the agency's and its client's businesses; so long as the employee's workers' compensation is secured the statutory scheme is satisfied. If the Legislature deems it advisable to include the temporary agency's clients in the benefits and burdens of the workers' compensation system it could do so, but it seems a stretch to grant immunity where the Legislature has already enacted C.G.S. § 31-292 to deal with coverage of the lent employee and the Supreme Court has already ruled against application of the right-to-control test in Lucarelli .
The Court agrees with the analysis of Judge Wilson in Long and holds that BML is not entitled, on the facts submitted in support of this motion, to summary judgment as a matter of law to the immunity from personal injury suit afforded an " employer" who has secured compensation for its employee under C.G.S. § 31-284(a).
There Are Genuine Issues of Material Fact that Preclude Summary Judgment.
Even if the Court were to adopt the " dual employer" doctrine, there are genuine issues of material fact concerning whether BML could be held to be an " employer" of plaintiff entitled to immunity from suit under C.G.S. § 31-284(a).
The staffing services agreement between BML and Micro Tech (the " Agreement") is designed to impose many of the usual burdens of being an employer on Micro Tech, including workers' compensation. Although the fee paid Micro Tech includes a mark-up for workers' compensation, it is left to Micro Tech to pay workers' compensation or to obtain any workers' compensation insurance. Compare, Long, 2013 WL 3388914 *7 (staffing agreement required agency to provide workers' compensation insurance). BML does not assume any obligation to provide workers' compensation for the " temporary personnel" supplied by Micro Tech. Throughout the Agreement the " temporary personnel" are referred to as " Micro Tech employee" and all salary and benefits to personnel are to be paid by Micro Tech. BML's only obligation is to pay fees to Micro Tech. The Agreement does provide a mechanism for BML to directly hire " any of Micro Tech's employees . . ." No evidence has been produced that BML sought to hire plaintiff. The Agreement read in its entirety appears to be written to avoid having any personnel assigned by BML by Micro Tech become BML's employees unless and until BML directly hires them. As Judge Wilson observed in Long, " . . . the defendant can't have it both ways, and should not be permitted to enjoy the benefit of the Workers' Compensation Act employer exclusivity provision when it (1) contractually disclaimed itself as an employer, and (2) assigned multiple employer responsibilities, including worker compensation insurance payments, to [the agency]." 2013 WL 3388914 *8. Although the Agreement is not as explicit as the staffing agreement in Long, the observation made is still apt.
By making Micro Tech the employer of record, rather than simply treating it as a referring agency or recruiter, the Agreement allows BML to avoid liability for workers' compensation for the " temporary personnel" and imposes that obligation on Micro Tech under the lent employee statute, C.G.S. § 31-292. Compare Compassionate Care, Inc. v. Travelers Indem. Co., 147 Conn.App. 380, 397, 83 A.3d 647 (2013) (holding that because application of the lent employee statute requires a showing of an employment relationship between the loaner and the person loaned, health care professionals who obtained work assignments through a nursing registry and were not employees of the registry, could not be loaned employees under General Statutes § 31-292). See generally 19 Conn. Prac., Workers' Compensation, § 2:33.
The Voluntary Agreement in plaintiff's workers' compensation case, appended to her affidavit, identifies " Micro Tech" as her employer. There is no evidence BML participated in the case or paid either workers' compensation or insurance premiums as required by an " employer" under C.G.S. § 31-284(a). See Moreno, 2001 WL 292153 *2 (material issue of fact based on non-payment of benefits required by C.G.S. § 31-284(a) or efforts to secure benefits).
No evidence has been presented of any agreement between BML and plaintiff. See Moreno, 2001 WL 292153 *2 (no evidence of employment agreement with plaintiff or compensation by defendant). Indeed, there is no evidence that BML agreed to assume any direct obligation to plaintiff. See Long, 2013 WL 3388914 *3. Plaintiff's affidavit states she was compensated by Micro Tech, not by BML, she was an employee of Micro Tech and not BML, and that Micro Tech controlled her assignment to BML. This raises a genuine issue of material fact whether there was an implied employment agreement between plaintiff and BML, which is a necessary element for application of the " dual employer" doctrine under the Larson test adopted by Judge Tobin in Crespo, 2009 WL 5322400 *7. " Because only employees are entitled to compensation under the [workers' compensation] act, it is clear that coverage must arise from a contract of employment, either express or implied." Blancato v. Feldspar Corp., 203 Conn. 34, 38, 522 A.2d 1235 (1987).
In Burnham v. Karl and Gelb, P.C., 50 Conn.App. 385, 387-89, 717 A.2d 811 (1998), the Appellate Court held for an implied contract to exist there must be proof of actual agreement to contract by both parties. No such proof has been submitted by BML, and plaintiff has specifically denied she was an employee of BML. To the contrary, the record is replete with evidence plaintiff was employed by Micro Tech and that BML was aware of and acquiesced in her continued employment by Micro Tech.
" [T]o prevail on [her] claim, the plaintiff must demonstrate an actual agreement by the defendant[s] to have an employment contract with [her].
There is also an issue of fact regarding BML's right to control plaintiff's work. See Moreno, 2001 WL 292153 *2 (right to control is an issue of fact). As Judge Noble observed in Feliciano, 2016 WL 3912330 *3, there is a difference between establishing actual control and a right to control. Neither the Agreement nor the employment documents with Micro Tech signed by plaintiff, appended to her affidavit, indicate that plaintiff is subject to the control of BML. The conclusory statements in the affidavit submitted by BML do not conclude the matter, although they do state that plaintiff while working at BML in furtherance of its business was under its actual supervision and control as to hours, means and methods. However, the evidence discloses Micro Tech retained the right to control her assignments and to discharge her as an employee at will. Plaintiff was required to report to Micro Tech if she was absent or tardy. Viewing the evidence most favorably toward plaintiff, there are genuine issues of material fact concerning BML's right to control. See Feliciano, 2016 WL 3912330 *3 (method of payment, right to discharge, contractual rights of control are all factors to consider under right-to-control test).
The motion for summary judgment is denied.
One of the claims of the appellant was that it had no supervision or control over the work of Lucarelli, but that the latter, in the performance of the work upon which he was engaged when he was killed, was subject to the direction and control of Bernardo, who was consequently his employer within the meaning of the Compensation Act. See Parsons v. Daly & Sons, 114 Conn. 143, 149, 158 A. 216; Massolini v. Driscoll, 114 Conn. 546, 549, 550, 159 A. 480. Subsequent to the accidents involved in those cases, and prior to that here involved, the Legislature, in 1931, adopted an amendment of the act, now section 1616c of the General Statutes, Cum.Sup. 1935, which reads as follows: " When the services of a workman shall be temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service, the latter shall, for the purposes of the workmen's compensation act be deemed to continue to be the employer of such workman while he is so lent or hired by another." The right of direction and control of the employee is no longer the test in determining the question of liability for compensation, but such liability is in all cases imposed upon an employer who has " temporarily lent or let on hire" to another the services of one of his employees .121 Conn. at 642 (emphasis added).
" A contract implied in fact, like an express contract, depends on actual agreement . . . Accordingly, to prevail on [her breach of contract] claim, which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that the [defendants] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to [her] under which [she] could not be terminated without just cause . . . To survive a motion for summary judgment, the plaintiff had the burden of presenting evidence that the defendant[s] had agreed to some form of contract commitment." " A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties . . . In order to support contractual liability, the defendants' representations must be sufficiently definite to manifest a 'present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff.'" Burnham, 50 Conn.App. at 387-89 (citations omitted).