Opinion
No. CV06 5000552 S
December 13, 2007
MEMORANDUM OF DECISION
The plaintiff, Raymond Normandie, brought this action against the defendant, Robert Scheinost, and the defendant, Richard Roberts. Counts I, II, III, V, VI and VII are against Robert Scheinost. Count IV is against Richard Roberts. The court finds for the defendant, Scheinost, on Counts II, III, V, VI and VII. The court finds for the defendant, Roberts, on Count IV. The Court finds for the plaintiff, Normandie, against the defendant, Scheinost, on Count I.
It is undisputed that Scheinost carried no workers' compensation coverage. General Statute § 31-284 provides "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injuries sustained by an employee arising out of and in the course of his employment." General Statute § 31-291 provides "The provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee . . . to recover damages resulting from personal injury . . . unless such principal employer has paid compensation benefits under the chapter to such injured employee." Although the defendant has not paid benefits, the court has found for the plaintiff in Count I and is awarding benefits measured by Workman's Compensation. It would appear that the plaintiff cannot recover benefits under Count I and still maintain the various actions set forth in the other counts. The court believes success on Count I alone would justify no recovery on Counts II, III, V, VI and VII. However, the court also finds that the other counts against the defendant, Scheinost, were not proven.
Count II alleges negligent misrepresentation. The court finds both that the defendant made no representation concerning workers' compensation and further, the plaintiff relied on no representation. Count III alleges negligence as to the defendant, Scheinost. The court finds no negligence on his part and if any negligence were found, negligence of the plaintiff in using his own saw without a guard, and particularly, failing to use eye protection which was available would defeat any negligence claim. Count V alleges negligent selection of an independent contractor referring to fellow employee, Roberts. The court finds that Roberts was not an independent contractor and was consequently not selected as an independent contractor by the defendant. Count VI alleges negligent infliction of emotional distress. The court finds that the defendant did not mislead the plaintiff to believe that he had "health and wage insurance." While it is true that the plaintiff had no other health insurance, there is no substantial evidence that he relied on Scheinost for medical coverage. Count VII alleges breach of contract as to the defendant, Scheinost. The court finds no contract between the parties other than an employer/employee relationship adequately provided for under the workers' compensation statute. The court finds no breach of contract.
Because the court finds that the defendant, Roberts, was not a site foreman for the work to be done on the property, but was simply a co-employee, the court finds no negligence by defendant, Roberts, and consequently no basis for an award of damages pursuant to Count IV.
The key question before this court is whether or not the plaintiff is an employee of the defendant, Scheinost. General Statute § 31-275 defines "employee" and "employer". An employee under section (9)(B), shall not include "(i) Any person to whom articles or material are given to be treated in any way on the premises not under the control or management of the person who gave them out; (ii) One whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business . . . (iv) Any person engaged in any type of service on or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week . . ." In Hanson v. Transportation General, Inc., 45 Conn.App. 441, 446 (1997), the Appellate Court held that "[T]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work."
On the question of control, the defendant, Scheinost, testified as follows:
Q. [by Attorney Levin] No, in your opinion, did you have in mind that Mr. Roberts was in charge when he was there and Mr. Boisclair would be in charge when Mr. Roberts was not present?
A. I'm not sure.
CT Page 21626
Q. Did you tell Mr. Normandie that when Mr. Roberts isn't here, you listen to Mr. Boisclair?
A. Did I say that?
Q. Yes.
A. No I didn't.
Q. Okay. Did you assume that if Mr. Normandie didn't perform his tasks well, that Mr. Roberts would dismiss him, tell him you are no longer needed?
A. Could you ask that question again? I missed the first couple of words. That's probably because of my hearing.
Q. Did you assume that Mr. Roberts had the right to tell Mr. Normandie what to do in terms of how to perform his tasks?
A. I did.
Q. And if he didn't perform his tasks that he could be let go, fired?
A. Sure.
Q. And in those instances when you were present, if you had asked Mr. Normandie to do something or not track something into the house or what have you, you would you have expected Mr. Normandie to listen to you; correct?
A. I would have.
Q. Okay. Cause you would have had, under those circumstances, the right to control his work while he was on your property; correct?
A. Could you please repeat that again; I want to make sure I understand this question thoroughly.
Q. For the limited purposes of how he was doing his job and what he was doing while on your property, you assumed that you would have had the right to control and direct him, whether or not you exercised it much, you had the right to do that if you chose to do that; correct?
MR. BARLOW: Objection, Your Honor. He's asking for a mental bit of gymnastics about what he might have thought.
THE COURT: No. It's a legitimate question if he has an opinion.
THE WITNESS: I have to admit it's a difficult one for me to comprehend, because I'm seeing two different things in there. Could you rephrase that question for me, sir?
Q. If you had wanted Mr. Normandie to stop what he was doing with one thing and come over and do something else because you had something else that you wanted to be done, you anticipated that he would listen to you while performing his job; correct?
A. Is this hypothetical situation you just described you mean?
Q. Yes.
A. Yes.
Q. So whether or not you exercised that control on a particular basis, you retained the right to control him in your own mind as far as the work on the property; true?
A. I'm not sure. I think that's a question that is — I'm having a hard time comprehending that. Transcript page 53-55.
"In Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, the Appellate Court held:
The determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive. While the method of paying by the hour or day rather than by a fixed sum is characteristic of the relationship of employer and employee, it is not decisive. Thompson v. Twiss, supra, 448; Stier v. Derby, 119 Conn. 44, 52, 174 A. 332. Nor is it decisive that the injured party uses his own tools and equipment. Bourget v. Overhead Door Co., 121 Conn. 127, 131, 183 A. 381. The retention of the right to discharge, upon which the finding is silent, is a strong, but again not a controlling, indication that the relationship is one of employment. Bieluczyk v. Crown Petroleum Corporation, 134 Conn. 461, 467, 58 A.2d 380, Jack Jill, Inc. v. Tone, 126 Conn. 114, 119, 9 A.2d 497. An independent contractor has the right to complete his contract in the absence of breach on his part. Aisenberg v. C.F. Adams Co., 95 Conn. 419, 423, 111 A. 591. We further point out that actual control or direction is not the test, significant though it may be. The real test is whether the employer has the right to direct. Welz v. Manzillo, 113 Conn. 674, 680, 155 A. 841; Kinsman v. Hartford Courant Co., 94 Conn. 156, 159, 108 A. 562; see notes, 19 A.L.R. 226, 1168."
Mr. Normandie was paid by the hour, maintained regular hours which generally consisted of Monday through Friday, beginning at 9:00 a.m. and occasional weekends as well. Mr. Normandie did not have his own company, business license, or insurance.
Although the testimony concerning control was in conflict, it is clear that while Roberts acted as a primary communicator between Scheinost and the other employees, Normandie and Boisclair, the court finds that none of the three were independent contractors. While defendant, Scheinost, seldom exercised control, he in fact possessed the right to control and his control was sufficient to establish an employer/employee relationship.
The court finds that the plaintiff was injured on the defendant's property in the manner to which he testified. The court further finds the evidence is insufficient to find that the plaintiff was impaired in any manner at the time the injury occurred.
The court finds the plaintiff worked thirty hours per week as shown in the hourly summaries provided by Mr. Roberts. The court finds that he was paid an hourly wage of $12 per hour. The plaintiff is entitled to the payment of his medical bills in the amount of $63,768.50. The plaintiff is entitled to payment of permanent loss of one eye, 157 weeks multiplied by the compensation rate determined under § 31-308b. The court finds no credible evidence that the injury prevented him from working and consequently finds no entitlement to loss of wages.