Kenneth B. Povodator, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISMISS (#126.00)

Kenneth B. Povodator, J.

Presently before the court is a motion to dismiss that raises an issue that in a somewhat different form and context has been addressed sparingly; the context here does not appear to have been addressed previously. As discussed below, the unique context is believed to require a result that differs from prior decisions.

In summary, a New York-based worker was injured at a jobsite in Connecticut, and commenced an action against the defendants claimed to be responsible for the condition causing him to sustain injuries. Apparently under the initial misapprehension that the employee had collected workers' compensation benefits under Connecticut law, the employer intervened, relying on General Statutes § 31-293. Subsequently, it was discovered (realized?) that the employee had collected benefits under New York law and not Connecticut law, and a motion to dismiss was filed by two of the defendants, claiming that a New York employer, having paid benefits under New York law, has no right under § 31-293 to intervene in this action. Implicitly if not explicitly, reliance for the motion is based on the language of § 31-293, which identifies a precondition for application of the statute in general, and intervention rights in particular--that the benefits be paid under Connecticut law: " When any injury for which compensation is payable under the provisions of this chapter has been sustained . . ."

Of particular relevance to this case (and one of two factors distinguishing it from the limited number of cases discussing the right of an out-of-state employer to intervene in an employee's Connecticut tort action) is the fact that prior to the filing of the motion to dismiss, the intervening employer had sought to amend its complaint to delete reliance on Connecticut law and replace that reliance with a reference to the workers' compensation laws of New York. In other words, whatever defect may have existed, the intervening employer was already in the process of correcting the problem when the motion to dismiss was filed.

As noted, the defendants moved to dismiss, claiming the court lacks subject matter jurisdiction. The court invited the parties to provide any authorities they could find concerning this issue, and especially any cases addressing whether an employer has such a right of action in New York. This request was motivated by the court having been presented with the language of a New York statute that recognized lien rights but did not specifically mention a right of intervention in an action commenced by the injured employee. Note that, by comparison, the Connecticut statute currently provides for both a right of intervention and a right to a lien on the proceeds of the employee's action.

Cases cited by the employer indicate that there has been recognition, in at least some New York decisions, of a permissive right of intervention by the employer, in connection with a lawsuit commenced by the employee, notwithstanding the absence of explicit statutory authorization for such intervention.

To the extent that the issue is or may be framed as one relating to intervention, the court has found the discussion of intervention in Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 81 A.3d 200 (2013) to be especially helpful. In that decision, the Connecticut Supreme Court discussed both intervention as of right and permissive intervention.

" It is well established that a party seeking to intervene in a matter as of right must satisfy a four-part test: (1) [t]he motion to intervene must be timely; (2) the proposed intervenor must have a direct and substantial interest in the subject matter of the litigation; (3) the proposed intervenor's interest must be impaired by disposition of the litigation without the [proposed intervenor's] involvement; and (4) the proposed intervenor's interest must not be represented adequately by any other party to the litigation." (Internal quotation marks and citation, omitted.) 310 Conn. 648.

The court finds that there is an inadequate basis for a determination of intervention as of right in the present case. The first condition appears to have been satisfied, but there are issues concerning the remaining three requirements (somewhat overlapping in nature). The fact that New York law creates or recognizes a lien right means that the interest is not truly " direct and substantial" but rather is derivative of the employee's claim. Because of that derivative quality, there is certainly doubt that it can be said that the intervenor's interests are not adequately represented or that a disposition without the intervenor's participation would impair its rights (beyond the limited right under New York law to approve a settlement). That is all emphasized by the fact that the language of the New York statute does not give a right to intervene (at least in explicit terms) but instead only lien rights, suggesting a legislative perception (in New York) that the lien rights are adequate to protect the employer's interests.

Moving on, the court in Austin-Casares then went on to discuss permissive intervention:

In BNY Western Trust v. Roman, supra, 295 Conn. at 194, 990 A.2d 853, this court discussed the two types of intervention, noting that [i]ntervention as of right provides a legal right to be a party to the proceeding that may not be properly denied by the exercise of judicial discretion. Permissive intervention means that, although the person may not have the legal right to intervene, the court may, in its discretion, permit him or her to intervene, depending on the circumstances. [p]ermissive intervention . . . is entrusted to the trial court's discretion . . . [and] depends on a balancing of factors . . . In deciding whether to grant a request for permissive intervention, a trial court should consider: the timeliness of the intervention; the [prospective] intervenor's interest in the controversy; the adequacy of representation of such interests by other parties; the delay in the proceedings or other prejudice to the existing parties; the intervention may cause; and the necessity for or value of the intervention in resolving the controversy . . . With respect to the propriety of the trial court's balancing of these factors, we have stated that [a] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court's discretion . . . A party challenging a ruling on permissive intervention bear[s] the heavy burden of demonstrating an abuse of . . . discretion. (Internal quotation marks and citations, omitted.) 310 Conn. 663-64.

The factors to be considered in evaluating permissive intervention effectively are modified versions of the factors used to determine whether there is a right to intervention, but without the definitive consequences.

At this point, it is helpful to recognize that any activity requiring balancing of factors and interests necessarily requires consideration of context, and in this case, the context may well be determinative. Although the court has, to this point, analyzed the issue in terms of intervention, the actual context is that the court is considering a motion to dismiss. Consideration of intervention is helpful in determining the status of the employer, but the court is not being asked to determine whether to exercise its discretion so as to allow the employer to become a party; it already is a party. In non-technical terms, then, the issue is not whether the intervenor should be allowed to become part of this case, but rather whether it should be thrown out/excluded--or at least its claim relating to recovery of benefits paid/payable to its employee. An alternate formulation, using somewhat more technical terms: having been allowed to intervene as a matter of claimed (but erroneous) statutory right, which error the employer sought to correct prior to any jurisdictional challenge, should the plaintiff's employer be allowed to remain in the case?

At this point, it is important to identify the other unique aspect of this case. Initially, the employer was allowed to intervene for purposes of asserting its claim for reimbursement of workers' compensation benefits (based on General Statutes § 31-293), but subsequently, one of the defendants against whom an intervening complaint had been filed, filed a counterclaim asserting a claim for common-law indemnification (Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965)). Thus, not only is the employer a party for purposes of asserting its own claim(s) but it also is a " defendant" with respect to a claim that has been asserted by one of the original defendants.

Therefore, the issue really is not a matter of whether permissive intervention should be allowed, should have been allowed, will be allowed, etc., but rather whether, given the fait accompli that the employer is a party both as a plaintiff and as a defendant, the affirmative claim being asserted by the employer should be dismissed, without actually affecting the employer's status as a party. That would lead to the potentially anomalous situation of the employer being a party who can be sued (in the counterclaim; #116.00) but cannot, itself, file a counterclaim or cross claim for recovery of workers' compensation benefits (protection of its lien rights). Such a result would make sense only if there was an actual or effective prohibition against an employer (under New York law) filing a direct claim against the tortfeasors allegedly responsible for its employee's injuries.

The intervening employer has cited cases (In the Matter of Hirschbeck v. Office of the Commissioner of Baseball, 131 A.D.3d 1285, 16 N.Y.S.3d 336 (2015) and an unpublished decision, Serrano v. 432 Park S. Realty Co., LLC ) as examples of cases in which intervention was allowed or noted as having been allowed, thereby impliedly negating any claim that intervention is not permissible under New York law. Conversely, the defendants' citation to Connecticut cases (e.g., Konner v. Bajra, Judicial District of Stamford-Norwalk, No. CV0301977955, 2006 WL 2556433 (Aug. 11, 2006) ), that denied intervention to out-of-state employers under § 31-293 (because benefits had not been paid under Chapter 568 of the General Statutes) did not consider the previously-identified--and probably unique--context of this case--an employer already in the case as a party and which will remain a party without regard to whether the court grants the motion to dismiss (and without regard to whether the intervention should have been allowed) and which employer had sought to rely on the law of the foreign state (rather than § 31-293) prior to the filing of a motion to dismiss. The amended intervening complaint no longer relies on Connecticut law, and the argument is that general legal principles would allow intervention of an out-of-state employer if the applicable state law would allow it. So again, the issue is not whether § 31-293 authorizes the employer to assert the New York-based claim (at present, no one is claiming that it does) but rather whether New York law permits such a claim and whether such a claim, if permitted, can be asserted in a Connecticut court (subject to the discretion of the Connecticut court), without regard to (or reliance on) Chapter 568 of the General Statutes.

The defendants have not identified any statute or case law indicating that a Connecticut court is not allowed to permit a party to assert such a claim (permissively), especially when the presence of the party is not limited to status as an intervenor but the party is also a counterclaim-defendant (the counterclaim having been asserted three months prior to the initial effort to amend the intervention complaint and subsequent filing of a motion to dismiss).

Indeed, stepping back and looking at the foregoing discussion from a different perspective, is this even a jurisdictional issue? The intervening employer is not relying upon a Connecticut statute that authorizes a lawsuit, such that there is no question as to whether the employer satisfies the prerequisites for a statutory action. There is no issue raised as to standing. The issue would seem to be more properly characterized as one of legal sufficiency, as the real issue is whether Connecticut courts will recognize the right of a New York employer to sue for reimbursement of workers' compensation benefits paid under New York workers' compensation law. While a discussion of the law relating to intervention may be helpful, given the fact that the employer is a party with a counterclaim being asserted against it limits the value of an analysis based on intervention, and the lack of a current invocation of any statutory cause of action eliminates the potential basis for a jurisdictional challenge.

Conclusion

" It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . ." Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728, 78 A.3d 148 (2013). If the jurisdictional issue had been raised initially, the arguments of the defendants might have been compelling, substantively and procedurally. The intervening plaintiff had already sought to amend the basis for its claim from a claim of right under § 31-293 to a claim based on permissive aspects of New York law, before the defendants raised any jurisdictional challenge. AND, prior to the jurisdictional challenge, the codefendant had asserted a counterclaim against the plaintiff's employer, such that its status as a party is not implicated by this jurisdictional challenge, even if the claim itself remained, at least for a time, jurisdictionally vulnerable.

In a sense, the court is being asked to exalt form over substance. Unless the moving defendants can establish that a " counter-counterclaim" filed against the defendant contractor (who has asserted a still-pending counterclaim against the employer) cannot be entertained, and that a cross claim against the moving defendants would also be barred if the motion to dismiss were to be granted, the amended " intervening" complaint asserts a claim that would be appear to be permissible under New York law and therefore seemingly can be asserted (permissively) in this case.

As noted in the final portion of the substantive discussion above, the combination of status as a party (not limited to intervening-plaintiff status) and the abandonment of any reliance on § 31-293, suggests that the court is being confronted with an issue that is not jurisdictional in nature but rather goes to the issue of legal sufficiency, properly raised, if at all, by (timely) motion to strike. Our appellate-level courts, in recent years, have been attempting to focus more precisely and narrowly on issues that truly go to subject matter jurisdiction as opposed to other procedural requirements and consequences, e.g., Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991) (availability of exception to fellow-employee " immunity" under workers' compensation is not jurisdictional issue); Williams v. CHRO, 54 Conn.App. 251, 257-58, 733 A.2d 902 (1999); reversed, 257 Conn. 258, 777 A.2d 645 (2001) (time limits in statutory proceeding not necessarily jurisdictional); Ed Lally, supra (distinction between jurisdiction and authority of court to act under statute); Citibank v. Lindland, 310 Conn. 147, 171 n.14, 75 A.3d 651 (2013) (same). Although this case does not fall into any of those paradigms, the posture of the case requires the court to engage in a similar exercise and reach a similar (non-jurisdictional) conclusion.

For all these reasons, then, the motion to dismiss is denied.

The court notes that in a somewhat analogous situation, our appellate courts have held that a motion to substitute generally should be entertained before considering a motion to dismiss, when the substitution would cure the claimed jurisdictional defect, Youngman v. Schiavone, 157 Conn.App. 55, 115 A.3d 516 (2015).