Opinion
No. CV 04-0486669
May 23, 2007
MEMORANDUM OF DECISION
On February 13, 2004, the plaintiff, Dolores Sibley, filed a two-count complaint against the defendants, Kleen Sweep, Inc. (Kleen Sweep) and Bridges at Lake Whitney, LLC (Bridges). This action arises out of injuries and losses allegedly sustained as a result of the plaintiff's fall, on January 7, 2002, at her place of employment, on ice in an area adjacent to a rear entrance of the building, which was owned by Bridges. Also, on that date Kleen Sweep was allegedly employed by Bridges to remove snow and ice that had accumulated near the rear entrance to the building. In counts one and two of her complaint, the plaintiff alleges that her fall and the resulting injuries, expenses, and losses were directly and proximately caused by the negligence of Kleen Sweep and Bridges, respectively, acting through their servants, agents, and employees.
On February 2, 2004, the plaintiff's employer, NSL Connecticut, LLC (NSL), filed a motion to intervene and for leave to file an intervening complaint pursuant to the Workers' Compensation Act, General Statutes § 31-293, to recover workers' compensation benefits paid to the plaintiff. The motion was granted on April 12, 2004.
On January 4, 2007, in response to the intervening plaintiff's complaint, Bridges filed an answer and special defense. The special defense alleges that the plaintiff was negligent at the time of her fall and her negligence was a substantial factor in causing her fall and resulting injuries. On January 17, 2007, the intervening plaintiff filed a motion to strike the special defense on the ground that it is legally insufficient and contrary to law. The intervening plaintiff submitted a memorandum of law in support of the motion. In response, on February 14, 2007, Bridges filed a memorandum in opposition. The matter was heard at the short calendar on March 5, 2007.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of any . . . special defense . . . that party may do so by filing a motion to strike . . ." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n. 20, 905 A.2d 1165 (2006). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[C]onsequently, [such motion] requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "In . . . ruling on [a] . . . motion to strike [a special defense], the trial court recognize[s] its obligation to take the facts to be those alleged in the special [defense] and to construe the [defense] in the manner most favorable to sustaining [its] legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). Furthermore, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Thus, "if facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
In its memorandum of law in support of the motion to strike, the intervening plaintiff (the plaintiff's employer, NSL) argues that Bridges' special defense alleging contributory negligence of the plaintiff is legally insufficient since its right to seek reimbursement of paid workers' compensation benefits is statutorily derivative of the plaintiff's cause of action and, therefore, is limited only by the amount the plaintiff may recover. The intervening plaintiff further argues that its right to obtain reimbursement, a statutory claim derived in its entirety, and unconditionally, from § 31-293, does not fall within the scope of General Statutes § 52-572h, the provision which articulates the state's contributory negligence doctrine.
Bridges argues in opposition that the intervening plaintiff's claim for reimbursement is derivative of the plaintiff's claim of negligence against the defendants, therefore, the contributory negligence of the plaintiff is an appropriate defense. Although Bridges concedes that the intervening plaintiff's cause of action is limited by the amount of recovery to the plaintiff, Bridges argues that since the special defense of contributory negligence is available as to the plaintiff's complaint, it is also available as to the intervening plaintiff's complaint. Bridges also argues that if the special defense is stricken, and the plaintiff later withdraws or is removed from the case, leaving only the intervening plaintiff's reimbursement claim, the defense of the plaintiff's contributory negligence may be unavailable.
General Statutes § 31-293(a) "provides that when an employee has become injured and is entitled to seek damages from a third party, an employer who has paid or has become obligated to pay workers' compensation benefits to that employee may seek reimbursement from the third party in one of two ways. First, the employer may bring an action directly against the tortfeasor. Second, it may join in an action commenced by the employee. If either an employer or an employee commences an action against the tortfeasor, that party must notify the other . . . Upon receipt of proper notice, an employer or employee has thirty days within which to join the action; failure to do so results in the abatement of that party's right of action." Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163-64, 716 A.2d 71 (1998). "[W]hen . . . an employer . . . has . . . intervened pursuant to § 31-293 to recover the benefits paid to its employee, § 31-293(a) provides . . . that if the claimant recovers any damages, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery . . ." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 11 n. 15, 905 A.2d 55 (2006).
Section 31-293(a) also provides: "the employer . . ., shall have a lien upon any judgment received by the employee against the [tortfeasor] or any settlement received by the employee from the [tortfeasor], provided the employer . . . shall give written notice of the lien to the [tortfeasor] prior to such judgment or settlement."
Connecticut's contributory negligence doctrine is articulated in § 52-572h(b), and provides in relevant part: "In causes of action based on negligence, contributory negligence shall not bar recovery in an action . . . to recover damages resulting from personal injury . . . if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering . . ." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 362 n. 2, 819 A.2d 822 (2003).
Although there is a split of authority on this issue among the Superior Courts, the Supreme Court has held that § 31-293 unconditionally authorizes reimbursement to an employer who properly intervenes in an employee's action where damages are recovered.
St. Peter v. Hartford Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0516327 (October 11, 1996, Wagner, J.T.R.) aff'd, 44 Conn.App. 906, 688 A.2d 371 (1997). (in response to a motion for apportionment the court stated that "§ 31-293) does not authorize any reduction from Intervenor's claim based on the percentage of contributory negligence attributable to the plaintiff . . ."
For example, in Durniak v. August Winter Sons, Inc., 222 Conn. 775, 610 A.2d 1227 (1992), an employer intervened to recover workers' compensation benefits paid on behalf of its employee. By way of special defense, the defendant alleged that the employee's injuries had resulted from the negligence of the employer. The employer moved to strike the special defense. The District Court requested certification of the issue and the Supreme Court held that a third-party tortfeasor may not raise the negligence of the injured party's employer as a special defense where the employer has intervened to secure the employer's right to reimbursement of workers' compensation benefits. The court reasoned that there is no suggestion either in the plain language of § 31-293 or in its legislative history that the legislature sought to limit the subrogation rights of an employer who otherwise has complied with the requirements of the statute. "The statute unconditionally authorizes reimbursement to the employer [i]f such employer and employee join as parties . . . in such action and any damages are recovered." (Internal quotation marks omitted.) Id., 780. "[T]he statute does not make the employer's negligence a ground for limiting the employer's recovery." Id. The court further noted that § 31-293 "represents a complex and comprehensive statutory scheme" and that "the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts." Id., 781. Furthermore, "[b]y its own terms, the comparative negligence statute applies only to causes of action based on negligence . . . Accordingly its terms do not govern statutory causes of action that have no common law counterpart . . . Because an employer's right to obtain reimbursement . . . is a statutory claim that is derived in its entirety from § 31-293(a) . . . the employer's claim does not fall within the compass of § 52-572h." (Citations omitted; internal quotation marks omitted.) Id., 782. Thus, the court deemed it "inappropriate [to] [import] contributory or comparative negligence into the no-fault workers' compensation reimbursement program." Id., 781.
Section 31-293 provides no express language that would permit the court to apply the state's contributory negligence doctrine to this strictly statutory right. General statutes § 31-293 provides: "[i]f the employer and the employee join as parties . . . in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer . . . shall take precedence . . ." "It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 73-74, 689 A.2d 1097 (1997).
Although Durniak involved a special defense alleging the contributory negligence of an employer, the reasoning of the court in striking the special defense is persuasive and equally applicable to cases, including the present case, where the contributory negligence of the employee is being alleged.
As previously noted, the Superior Courts are not in agreement when confronted with the issue before this court. However, the more persuasive case law holds that an employee's alleged contributory negligence does not constitute a valid special defense to an intervening employer's right to reimbursement pursuant to § 31-293.
In Boland v. Connecticut Resource Recovery Authority, Superior Court, judicial district of Fairfield, Docket No. CV 92 296290 (November 22, 1993, Fuller, J.), the court denied the employer's motion to strike the special defense of contributory negligence of the employee, but granted the motion to strike the special defense claiming that the amount which the employer can recover must be reduced proportionally by the contributory negligence of the employee based on § 52-572h. In granting the motion to strike the second special defense, the court noted that "[w]hile the contributory negligence of the employee may effect the employer's recovery, as alleged in the first special defenses, the defendants do not get an additional reduction based on 52-572h . . . Section 52-572h does not apply to an employer's claim under 31-293 . . . While the statute applies to the negligence claim of the employee in his complaint, it does not directly apply to the employer's statutory claim to recover workers' compensation benefits. If there is sufficient contributory negligence on the part of the employee it may prevent a recovery by the employer or reduce the amount of recovery because the employer cannot recover more than the employee himself could recover . . . Nevertheless, because the employer's right to obtain reimbursement from a third party tortfeasor is a statutory claim that is derived in its entirety from 31-293(a), the employer's claim is not effected by 52-572h." (Citations omitted.) Id.
In Dapice v. Eastern Elevator Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 1015979 (November 20, 1992, Sylvester, J.), the intervening plaintiff employer filed a motion to strike the special defense of the defendant on the ground that the comparative negligence of the plaintiff employee was inappropriate to raise against the intervening plaintiff's complaint for reimbursement of workers' compensation payments. Therein, the court held that "the special defense of plaintiff employee's comparative negligence is legally sufficient as against the plaintiff employee's complaint. However, although [the] plaintiff employee's comparative negligence, if asserted against [the] plaintiff employee, would affect [the] intervening plaintiff's possible recovery by necessarily altering the amount to be apportioned, such a defense is not legally sufficient against the intervening complaint." Id. The court further reasoned that "[t]he intervening plaintiff is constructively reached by the special defense asserted against the plaintiff employee in that there may be a reduction in the amount to be apportioned." Id.
Likewise, in Williams v. Teitleman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 340729 (August 24, 1990, Mulcahy, J.) [ 2 Conn. L. Rptr. 320], the employer intervened in the employee's personal injury action pursuant to § 31-293 in order to obtain reimbursement of workers' compensation payments. The defendant alleged, by way of special defense, that the employee's damages were proximately caused by the negligence of the employee and the intervening plaintiff, as employer. The employer moved to strike the defense on the ground that an employer's negligence does not constitute a defense to the employer's right to reimbursement. The court granted the intervening plaintiff's motion to strike on the ground that the defendant's defense of contributory negligence was not valid.
Similar to both Dapice and Williams, in the present case the plaintiff's employer has intervened in the plaintiff employee's personal injury action pursuant to § 31-293 for reimbursement of workers' compensation paid to the plaintiff employee. As in Dapice and Williams, in response to the intervening plaintiff employer's complaint, the defendant has raised a special defense alleging the plaintiff employee's contributory negligence, which the intervening plaintiff has subsequently moved to strike. Thus, as in Dapice, the special defense in the present case was also raised against the plaintiff's complaint. Consequently, it is submitted that, as in both Dapice and Williams, the court should grant the intervening plaintiff's motion to strike on the ground of legal insufficiency.
Furthermore, although it is recognized that some Superior Courts have held that the contributory negligence of the employee may be considered by the trier of fact when asserted against the employer, some of these cases have resolved the issue on a ground that differs from the present case, namely, where the employer brings the reimbursement action directly against the tortfeasor, instead of intervening in an action commenced by the employee.
The Dapice court noted that in Air Flo, Inc. v. Consolidated Engineers Constructors, Inc., Superior Court, judicial district of Danbury, Docket No. 304911 (January 13, 1992, Fuller, J.) [ 5 Conn. L. Rptr. 460] ( 8 C.S.C.R. 248), it was determined that an employee's comparative negligence is deemed a legally sufficient special defense when raised against an employer, where the employee is not a party to the action. Thus, the court denied the motion to strike the special defense. As in the present case, however, "[w]here an employer does not bring the action but instead is an intervening plaintiff in the employer's suit, the right which the intervening plaintiff is exercising is not one to recover damages for the wrong allegedly done his employee, but one conferred by statute . . . If the plaintiff employee is awarded damages, the intervening plaintiff need only establish that it has paid compensation or has become obligated to do so." (Citations omitted; internal quotation marks omitted.) Dapice v. Eastern Elevator, Co., Inc., supra, Superior Court, Docket No. CV 90 1015979.
In Air Flo, Inc. the court noted that "[a] claim of comparative negligence by the employer and a claim of comparative negligence by the employee present different considerations. The employee has the right at common law, independent of section 31-293, to bring a negligence action for personal injuries against a defendant who injured him. The employer's cause of action against the same defendant is created and limited by section 31-293. The comparative negligence statute, section 52-572h, provides in clear and unambiguous language that comparative negligence principles apply only [in] causes of action based on negligence." (Internal quotation marks omitted.) Air Flo, Inc. v. Consolidated Engineers Constructors, Inc., supra, 8 C.S.C.R. 249. The court further stated that pursuant to § 31-293 "the employer cannot recover any more than the employee himself could recover." Id. Here, even though the court recognized that an employer's cause of action for reimbursement of workers' compensation is created and limited by § 31-293, the court agreed to consider the comparative negligence of the employee since the employee had not made a claim for damages.
In the present case, Bridges cites both Wallace v. Joyal, Superior Court, judicial district of New Haven, Docket No. CV 00 0441662 (November 26, 2001, Robinson, J.) and Morales v. Zeranski, Superior Court, judicial district of Fairfield, Docket No. CV 290228 (July 16, 1993, Ballen, J.) [ 9 Conn. L. Rptr. 379] in support of its argument that the comparative negligence of the employee may be considered by the trier of fact because an employer's right to recover from a third party is derived from the employee's rights. Both of these cases correctly state that an employer's right to reimbursement is derived from the employee's rights to the extent that the employer cannot recover any more than the employee himself could recover, and the employer has no right to recover from a third party in the absence of fault and/or compensation provided on the part of the third party. The employer's right of reimbursement pursuant to § 31-293, however, is a "separate right vested in [the employer] by the statute." (Internal quotation marks omitted.) Dapice v. Eastern Elevator, Co., Inc., supra, Superior Court, Docket No. CV 90 1015979. As a result, it would be redundant to apply the special defense of contributory negligence to the intervening plaintiff employer directly since the intervening plaintiff is already constructively reached by this special defense being asserted against the plaintiff employee in that there may be a reduction in the amount to be apportioned if the plaintiff employee is deemed contributorily negligent. Thus, "[i]f the plaintiff employee recovers nothing due to her negligence, intervening plaintiff will also recover nothing." Id.
Lastly, Bridges argues "that if [the] special defense is stricken, and the plaintiff later withdraws from the case or is otherwise removed from the case, leaving only the [i]ntervening [p]laintiff's subrogation claim, the injured employee's comparative negligence defense may be unavailable to the defendant."
In Caballero v. Pratt Street Ltd. Partnership, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0523967 (November 2, 1993, Sheldon, J.), the intervening plaintiff's motion to strike the special defense of the employee's comparative negligence was granted on the condition that "if at any time verdict, plaintiff . . . is nonsuited, withdraws his case, or settles his case against [defendants], [defendants] shall have the right to amend [their] answer to the complaint of the intervening plaintiff in order to reassert the special defense . . . stricken." Id.
While Bridges poses a legitimate concern, this concern may be addressed by granting the motion to strike conditioned upon Bridges retaining the right to reassert the stricken special defense of the plaintiff's contributory negligence in the event the plaintiff later withdraws or is otherwise removed from the case.
Also, it is well established among the courts that an employer retains his or her independent right to reimbursement when an employee withdraws from a case where the employer had intervened. The Supreme Court in Doucette v. Pomes, 247 Conn. 442, 468, 724 A.2d 481 (1999), stated that "the employer's right of action under § 31-293 is separate and distinct from the employee's right . . . [and is] vested in the employer exclusively; it is not the right of the employee." (Internal quotation marks omitted.) Furthermore, "a settlement by the employee does not bar recovery by the employer." J.P. Noonan Transportation, Inc. v. Ferrara, Superior Court, judicial district of Windham, Docket No. 057489 (February 15, 2001, Foley, J.) ( 29 Conn. L. Rptr. 241). In Snagg v. Eastman, Superior Court, judicial district of Fairfield, Docket No. CV 90 0266907 (July 28, 1992, Melville, J.) [ 7 Conn. L. Rptr. 172], the court held that "when [a] plaintiff-employee settles and withdraws, [an] intervening employer who does not assent to such settlement retains a continuing right of action . . . pursuant to [an] intervening complaint." Conversely, if a plaintiff accepts an offer of settlement and the intervening employer assents, the amount paid by the defendants is subject to apportionment pursuant to § 31-293(a).
In Mendenhall v. Connecticut Post Ltd. Partnership, Superior Court, judicial district of Fairfield, Docket No. CV 94 0316415 (November 26, 1997, Skolnick, J.) [ 21 Conn. L. Rptr. 69], the plaintiff employee filed a complaint against the defendant, and the employer subsequently intervened seeking reimbursement of workers' compensation payments pursuant to § 31-293. Thereafter, the employee withdrew her action against the defendant. Here, the court held that "[t]he [employer] [could] proceed with its claim as an intervening plaintiff absent [the employee]." Id. The court reasoned "this right of action, although termed `derivative' of the employee's claim, does not require that [the employee] be joined as a party . . . to enforce [the employer's] derivative right." (Internal quotation marks omitted.) Id.
CONCLUSION
For the foregoing reasons, the court grants the intervening plaintiff's motion to strike.