Opinion
No. CV 06 5001837S
August 25, 2008
MEMORANDUM OF DECISION REGARDING DEFENDANT'S JUNE 17, 2008 MOTION FOR SUMMARY JUDGMENT
The defendant's June 17, 2008 Motion for Summary Judgment, "MSJ," is denied because the evidence and law offered by the movant in support of the motion fails to establish that there is no genuine issue of material fact as to the defendant's legal liability for the conduct alleged and additionally that the movant is entitled to judgment as a matter of law as required by Connecticut Practice Book § 17-49. The defendant has failed to establish, as asserted in its MSJ, that the tort immunity as created by the "principal employer doctrine" embodied in Connecticut General Statutes § 31-291 is applicable to the defendant in the instant case.
The Complaint alleges a single count of negligence arising out of a July 28, 2004 traumatic amputation and fracture of a portion of the fingers on the left hand of the plaintiff, Nourddine Djeddar. Djeddar alleges he was an employee of Randstat, sic, North America, "Randstad," Complaint, paragraph 2, and was assigned by Randstad to temporary work at the factory of the defendant Rowley Spring Stamping Company, "Rowley." Rowley instructed Djeddar to operate a machine press owned, maintained and controlled by Rowley, Complaint, paragraphs 3 4. Djeddar was injured while operating the press and claims Rowley's negligence caused the injury, Complaint, paragraph 5.
Rowley asserts several Special Defenses alleging immunity from liability pursuant to C.G.S. § 31-291 "because Defendant was Plaintiff's principal employer and/or paid workers' compensation benefits to Plaintiff." See Answer of April 9, 2007, Second Special Defense, with similar allegations in the Third and Sixth Special Defenses.
The plaintiff's Reply denied the allegations of the Special Defenses.
Rowley's June 17, 2008 MSJ was supported by:
CT Page 15296
1. the 11-05-07 deposition transcript of Linda Valerie of Randstad; and
2. defendant's exhibits 4 6 from Valerie's deposition.
On July 1, 2008 Djeddar filed an Objection to the Defendant's Motion for Summary. The Objection was supported by:
1. selected portions of the 11-05-07 deposition transcript of Linda Valerie; and
2. a copy of the May 15, 2007 Stipulation Agreement between Djeddar and Randstad/Risk Enterprise Management approved by Workers' Compensation Commissioner Nancy Salerno on July 16, 2007.
Applicable Legal Standards
There are two applicable legal standards: those governing a motion for summary judgment and those governing the `principal employer' immunity.
Summary Judgment Standard
The Connecticut Practice Book provides, in pertinent part, that a motion for summary judgment may be granted when there is no genuine issue of material fact in dispute and the movant is entitled to judgment as a matter of law.
Sec. 17-49. — Judgment
The judgment sought 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.
(P.B. 1978-1997, Sec. 384.)
A moving party may seek summary judgment by assuming the truth of certain facts solely for purposes of the motion and on this basis argue that it is entitled to judgment as a matter of law. Alternatively, a movant may concede that certain facts are in dispute, but maintain that these facts are immaterial. "A material fact is a fact that will make a difference in the outcome of the case." (Citation omitted.) Reynolds v. CT Page 15297 Chrysler First Commercial Corp., 40 Conn.App. 725, 729, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). A "genuine" issue has been described as a "triable, substantial or real" issue of fact or one that "can be maintained by substantial evidence." United Oil Co. v. Urban Redevelopment Commission, 153 Conn. 364, 378, 260 A.2d 596 (1969). An issue of fact "encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Citations omitted.) Id., 379. The burden of showing the non-existence of a material fact cannot be met by mere assertion, but must be shown by "[e]videntiary facts or substantial evidence outside the pleadings." (Citations omitted; emphasis deleted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). "Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. He must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Id., 802. The burden of proving the non-existence (or existence) of a genuine issue of material fact cannot be satisfied by relying on: arguments or assertions by counsel, either orally or in memoranda; Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 799, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007); unadmitted allegations of the pleadings; Dinnis v. Roberts, 35 Conn.App. 253, 260, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994); or on unauthenticated documents, speculative or conjectural claims, or other information that would be inadmissible evidence. See Nolan v. Borkowski, 206 Conn. 495, 507, 553 A.2d 1031 (1988) (speculative evidence "cannot serve as a basis for opposition to a motion for summary judgment"); New Haven v. Pantani, supra, 89 Conn.App. 678 (summary judgment procedure "could be circumvented by filing unauthenticated documents in support of summary judgment"). Furthermore, a motion for summary judgment that does not squarely address or refute all the material facts or legal claims raised by the pleadings or the opposing documents should be denied. See Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).
In response to a properly supported motion for summary judgment indicating the absence of any material disputed facts, the burden shifts to the non-movant to present a "factual predicate" demonstrating the existence of a genuine issue of material fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Again, this factual predicate must be premised on "evidentiary facts" or "substantial evidence"; Martinez v. Southington Metal Fabricating Co., supra, 101 Conn.App. 799; and cannot be premised solely on mere assertions unadmitted allegations of the pleadings, or speculative or inadmissible evidence. Id. at 799-80. "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Citations omitted, internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn.App. 729.
"In seeking summary judgment, it is the movant who has the burden of showing the non existence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of material facts, which under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." Socha v. Bordeau, 277 Conn. 579, 585 (2006).
Additionally, "[t]he courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact." Id. at 585-86.
"A `material fact' has been defined adequately and simply as a fact which will make a difference in the result of the case." Hammer v. Lumberman's Mutual Casual Company, 214 Conn. 573, 578 (1990).
Especially important in the consideration of this motion is the evidence produced to support it. "As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of the motion fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such issue." Socha, 586.
The plaintiff submits that the evidence produced by the movant has not met this burden and he has no obligation to submit documents in opposition. He has, nonetheless, presented evidence as if the movant had met its burden. "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Id.
Courts are especially reluctant to grant summary judgment in negligence actions. Negligence issues "are ordinarily ones of fact" and determined by the trier of fact. Trzcinski v. Richey, 190 Conn. 285, 295 (1983). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446 (1984) (internal quotation marks omitted).
Principal Employer Immunity Standard
The Connecticut Workers' Compensation Act provides an exclusive remedy for employees whose injuries arise out of and occur in the course of their employment, subject to limited and inapplicable exceptions, vis-a-vis the employee's employer and/or a "principal employer," C.G.S. § 31-284(a). An employer is an entity defined by C.G.S. § 31-275(10). A "principal employer" is an entity defined by C.G.S. § 31-291.
No claim is made in the instant case that Rowley was Djeddar's employer as defined by C.G.S. § 31-275(10).
However, a claim is made that Rowley was the "principal employer" of Djeddar. The court had defined a "principal employer" as one that meets the three requirements of the first sentence of C.G.S. § 31-291: the relation of the principal employer and contractor must exist in work wholly or in part for the former; the work must be on or about premises controlled by the principal employer; and, the work must be a part or process in the trade or business of the principal employer, Gigliotti v. United Illuminating Co., 151 Conn. 114, 118 (1963).
Sec. 31-291. Principal employer, contractor and subcontractor.
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.
(Emphasis added, ed.)
The 1988 statutory amendment of C.G.S. § 31-291 added the requirement, see bold and italics of footnote containing the current version of the statute, that the "principal employer" must also pay compensation benefits to or on behalf of the claimant in order to obtain the immunity from civil action that the statute offers.
Recently our Supreme Court reviewed and interpreted the meaning of this statute, including the 1988 amendment shown in bold italics in footnote 1, Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 519-26 (2003). The Court concluded that the injured employee of a subcontractor may sue the general contractor, which in that case met the definition of a "principal employer," unless the principal employer has "in fact paid workers' compensation benefits to the employee." Pelletier, supra, p. 526.
In short, our Supreme Court found that the statutory immunity C.G.S. § 31-291 from civil action requires that the party seeking the statutory immunity qualify as a principal employer AND comply with the second sentence of the statute, the 1988 amendment, by actually paying the workers' compensation benefits to or on behalf of the injured employee.
The plaintiff concedes in his July 1, 2008 Memorandum of Law in Support of Plaintiff's Objection to Defendant's Motion for Summary Judgment, p. 2, paragraph 2 "(T)he plaintiff agrees that at the time of the injury the defendant was the principal employer and the work was performed on the defendant's premises and under its control(.)", that Rowley meets the first statutory requirement to be deemed a `principal employer' of Djeddar at the time the tortious conduct alleged in the Complaint occurred.
The second requirement for the application of the principal employer immunity is that the principal employer "in fact paid workers' compensation benefits to the employee," Pelletier, supra, p. 526.
Here the question of a genuine issue of material fact becomes apparent. The movant, Rowley, offered the deposition testimony of Linda Valerie, a representative of Randstad, Djeddar's employer on the date of this loss. The movant, in its instant motion and accompanying memoranda of law, conceded that Randstad was Djeddar's employer on the date of loss, that Randstad had, through its workers' compensation insurer Risk Enterprise Management, Inc., paid workers' compensation benefits to Djeddar, and sought to establish that Randstad had purchased the workers' compensation insurance coverage for Djeddar using funds received from Rowley.
Ms. Valerie, Randstad's representative readily admitted that Randstad billed Rowley hourly charges for the services of Djeddar. Ms. Valerie readily admitted that part of the hourly charges included the hourly wage paid by Randstad to Djeddar. She also admitted that part of the hourly charge was attributable to Randstad's overhead costs associated with such employee and a profit margin for Randstad. Ms. Valerie admitted that part of the "overhead expenses" included the cost incurred by Randstad for purchasing insurance coverage for the hourly employees, such as Djeddar. She admitted that the insurance coverage purchased by Randstad included workers' compensation insurance coverage.
However, she was unable to determine the cost Randstad incurred to purchase workers' compensation insurance coverage for Djeddar, the overall cost Randstad charged Rowley for Djeddar's services generally nor the portion of that charge that might have been attributable to purchasing workers' compensation coverage for Djeddar. Significantly there was no agreement between Randstad and Rowley obligating Randstad to purchase workers' compensation coverage for hourly employees of Randstad who worked temporarily at Rowley.
Ms. Valerie testified, hesitantly and with qualification as to the extent of her knowledge, in response to Rowley's counsel's questions:
Q. "In July of 2004, the hourly rate charged by Randstad, sic, to Rowley Springs for the work performed by Nourddine Djeddar for Rowley Springs would have included the cost of procuring workers' compensation insurance?," p. 53, lines 12-15.
The answer, after intervening plaintiff's counsel's objection:
A. "Yes. As far as I know, this comes from corporate. This is what's included in our markup and our charge." p. 54, lines 20-22.
Several moments later, answering plaintiff's counsel's questions on the same topic Ms. Valerie offered even less illuminating responses, the following questions and answers appear on page 56, lines 10-24:
Q. And when you set your hourly rate, do you break any thing down for the client in terms of this much is what goes to the employee, this much is my profit, this much goes to the insurance, this much goes to me?
A. No
Q. So it's all just figured into the cost of your doing business?
A. Yes
Q. So you don't directly charge people for your insurance. It's just one of the things that's built into the hourly rate?
A. Yes
The movant could not establish evidence of or produce a written agreement between Rowley and Randstad concerning terms of Djeddar's employment and specifically whether Randstad agreed to provide workers' compensation coverage for Djeddar while Djeddar worked at Rowley. Further, there was no evidence of any agreement between Rowley and Randstad obligating Randstad to provide workers' compensation coverage to Djeddar, at all, including no agreement that any part of Rowley's payment to Randstad would be used to purchase workers' compensation coverage for Djeddar's benefit.
The movant also offered Exhibits 4 and 6 from Ms. Valerie's November 5, 2007 deposition. Those exhibits are photocopies of emails from Ms. Valerie to Rowley dated September 7, 2006. The emails describe a list of employment benefits that Randstad offered its employees and described that the hourly billing rate included costs for recruiting, payroll services, state and federal tax withholding, FICA withholding, employee benefits, administration fees, general liability insurance, W-2 and W-4 form preparation, I-9 form preparation and state and local assessment withholding for state funded healthcare and medical programs. The email apparently described Randstad's practices as of September 7, 2006, while the subject loss occurred July 28, 2004. There was no evidence that the Randstad's practices were the same on both dates.
Relying upon Sgueglia v. Milne Construction Company, 212 Conn. 427, (1989), the movant requests the court infer that part of the apparent oral agreement between Randstad and Rowley involving Djeddar's services that existed on July 28, 2004 contemplated that Randstad would use part of the funds Rowley paid to Randstad, in consideration of Djeddar's services at Rowley's factory, to purchase the workers' compensation insurance covering Djeddar.
This court declines to infer such terms and notes that Sgueglia is inapplicable because of the disparate factual underpinning of Sgueglia and the instant case the 1988 amendment of C.G.S. § 31-291 and the Supreme Court's recent interpretation of C.G.S. § 31-291.
In Sgueglia the "principal employer," Milne Construction Co., contractually required the subcontractor, DM Masonry Company, Inc. (Sgueglia's employer) to purchase workers' compensation insurance coverage. DM was required to provide to Milne a certificate evidencing such insurance coverage, for DM's employees, including Sgueglia. DM fulfilled both contractual duties: purchasing workers' compensation insurance covering Sgueglia and providing a certificate of insurance to Milne. The Court approved the trial court's inference that part of the funds paid by Milne to DM were to cover DM's costs of purchasing the contractually required workers' compensation insurance coverage for its workers.
In the instant case, Rowley has produced no evidence that there was any contractual requirement that Randstad purchase workers' compensation insurance coverage nor any obligation that Randstad provide a certificate of insurance proving such purchase. Fortuitously, Randstad did purchase workers' compensation coverage, applicable to Djeddar in this instance, however the movant offered no evidence that Rowley contractually obligated Randstad to do so. The movant was unable to establish that Rowley paid Randstad to purchase workers' compensation insurance, but only that Randstad did purchase workers' compensation insurance coverage.
Further, the Court noted "Milne did in fact obtain insurance coverage to assure that benefits would be paid to any and all of its employees and the employees of its subcontractors(.)," Sgueglia, supra, p. 435. Rowley has offered no evidence of obtaining workers' compensation insurance coverage to assure that benefits would be paid to employees (Djeddar) of its subcontractors (Randstad).
The instant case and Sgueglia are factually dissimilar on significant matters.
The Sgueglia case arose out of a January 30, 1985 accident. The Sgueglia court interpreted C.G.S. § 31-291 as it existed on that date. However, the Connecticut Legislature significantly amended C.G.S § 31-291 in 1988. That amendment, in legislature response to the infamous L'Ambiance Plaza construction accident that caused numerous fatalities and severe injuries allegedly as a result of the general contractor's negligence, removes the immunity extended by the principal employer doctrine "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." C.G.S. § 31 291.
The Sgueglia court did not consider the 1988 amendment to C.G.S. § 31-291. However, the Pelletier court did address that amendment when considering the principal employer doctrine's extension of immunity.
The purpose and effect of this amendment was to limit the implied common-law immunity of the principal employer to the situation in which it had in fact paid the workers' compensation benefits that presumably were the basis of its immunity. Implicit in this amendment, moreover, was the notion that, except in the isolated cases of its application, there would be no such immunity. In addition, the legislative history of the provision supports our conclusion that the legislature intended to subject principal employers to suit, unless they in fact had paid workers' compensation benefits. Thus, after this amendment, even a principal employer could be sued for damages if it had not in fact paid any workers' compensation benefits to the injured employee of a subcontractor.
CT Page 15304 Pelletier, supra, p. 525-26.
The plaintiff provided a copy of the Stipulation Agreement approved by the Connecticut Workers' Compensation Commission wherein Djeddar and Randstad, together with Risk Enterprise Management, Inc., agreed that an employment relationship existed between Djeddar and Randstad as of July 28, 2004, that Djeddar suffered the aforementioned left hand injuries arising out of and in the course of his employment and that Randstad and its workers' compensation insurer paid workers' compensation benefits to Djeddar as a consequence thereof.
The movant has not established that Rowley paid compensation benefits to Djeddar hence the immunity extended by the principal employer doctrine is not available to Rowley.
As the movant has been unable to establish that no genuine issue of material fact exists as to the application of the principal employer immunity doctrine and has not been able to establish that it is entitled to judgment as a matter of law Rowley's June 17, 2008 Motion for Summary Judgment is denied.