Opinion
CV136009785
01-20-2016
Tina Yaunsem v. Kelly Services, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Honorable John W. Pickard, J.
The issue before the court is the third party defendant's motion for summary judgment (#150). The motion is based on the following grounds: (1) that the Connecticut Workers' Compensation Act is the exclusive remedy for the plaintiff; (2) that the terms of the claimed agreement are ambiguous; and (3) that the third-party plaintiff cannot establish common-law indemnification because it cannot prove exclusive control as a matter of law. For the reasons given below, the court will deny the motion for summary judgment.
FACTS
On December 5, 2013, the plaintiff, Tina Yaunsem, filed a two-count complaint sounding in negligence against the defendants, Andres Serrano and Kelly Services, Inc. (Kelly Services). The plaintiff alleges the following facts. On May 21, 2012, the plaintiff, an employee of Global Steering Systems, LLC (Global Steering), was working at Global Steering's warehouse facility (facility) when Seranno, an agent, servant and/or employee of Kelly Services, " suddenly and without warning, drove the forklift into the plaintiff, crushing her left foot and ankle and also fracturing bones in her right foot and ankle." (Compl., ¶ 10.) Serrano operated the forklift in a negligent and careless manner.
On October 6, 2014, Kelly Services, as a third-party plaintiff, filed a motion to implead Global Steering, as the third-party defendant, into this action. The court, Moore, J., granted this motion on October 22, 2014. The first count of the third party complaint alleges facts to support a claim for common-law indemnification, and the second count alleges facts to support a claim for contractual indemnification.
On June 16, 2015, Kelly Services filed an amended third-party complaint alleging the following facts. At the time of the incident, and for many years prior, Kelly Services had an agreement with various entities that operated the facility, including Global Steering, whereby Kelly Services provided temporary employees to work in the facility. The most recent version of a written agreement titled " Customer Services Agreement" (Agreement) was entered into by Kelly Services and a company that operated the facility prior to Global Steering, and the company changed its name to Global Steering after the Agreement was entered into but while Serrano was already working at the facility. After the company's name changed to Global Steering, the relationship, procedures, policies, payments, and dealings between Global Steering and Kelly Services remained as they were between Kelly Services and the prior company that was a party to the Agreement. Both Kelly Services and Global Steering continued to honor the terms of the Agreement, and all Global Steering employees that Kelly Services placed remained employed with Global Steering. Per the Agreement, Global Steering was responsible for the use of any vehicle or powered mobile equipment by its temporary employees, including Serrano, and Global Steering is contractually obligated to indemnify Kelly Services. Any injury sustained by the plaintiff was directly and proximately caused by Global Steering, its employees, agents and/or servants negligence and carelessness in the following ways: (a) failed to properly train its temporary workers in the performance of their duties, including forklift operation; (b) failed to properly supervise its temporary workers in the performance of their duties, including forklift operation; (c) failed to advise or train Serrano to keep a reasonable and proper lookout when he was operating the forklift; (d) failed to advise or train Serrano to keep the forklift under proper and reasonable control; (e) permitted Serrano to operate the forklift at a rate of speed that was greater than reasonable for the circumstances; (f) failed to advise or train Seranno to give timely warning to the plaintiff that he was about to drive the forklift into her; (g) failed to advise or train Serrano to apply the brakes in time to avoid striking the plaintiff; (h) failed to advise or train Serrano to take reasonable and necessary evasive action to avoid striking the plaintiff; and (i) failed to design or properly configure the work spaces in the facility to prevent forklifts and pedestrians from being in the same place at the same time. At all times, (1) Global Steering was in exclusive control of the situation, including the training, testing and evaluation of Serrano's qualifications to operate forklifts and Serrano's operation of forklifts, (2) Kelly Services did not know of Global Steering's negligence, had no reason to anticipate it, and could reasonably rely on Global Steering, its employees, agents and/or servants not to be negligent, and (3), an independent legal relationship existed between Kelly Services and Global Steering requiring Global Steering to indemnify Kelly Services for Serrano's operation of the forklift at the time of the incident because Global Steering and Kelly Services continued to work together under the parameters of the Agreement even though Kelly Services entered into the Agreement with the entity operating the facility prior to Global Steering.
Kelly Services provided an unauthenticated copy of the Agreement as Exhibit 1 to its amended third party complaint.
On March 27, 2015, Global Steering filed its answer and special defense to the third-party complaint, whereby Global Steering denies that it was negligent and that it is required to indemnify Kelly Services, but admits that Global Steering and Kelly Services had a previous customer services agreement that had expired as of May 21, 2012. Global Steering pleads the special defense that the Workers' Compensation Act bars this action. On April 22, 2015, Kelly Services filed its reply to Global Steering's special defense denying the allegations. On August 3, 2015, Global Steering filed its motion for summary judgment, with a supporting memorandum of law, regarding both the claims for common-law indemnification and contractual indemnification, on the following grounds: (1) Kelly Services has neither alleged nor established the existence of a valid written contract between Kelly Services and Global Steering that was effective on May 21, 2012, and Global Steering is protected by the Workers' Compensation Act against any indemnification claims brought by third parties; (2) the Agreement and/or any contractual terms relied upon are ambiguous and must be construed against Kelly Services; and (3) Kelly Services cannot establish that Global Steering had exclusive control over the incident, and, therefore, summary judgment must be granted as a matter of law. On September 1, 2015, Kelly Services filed its objection to Global Steering's motion for summary judgment, with a supporting memorandum of law, arguing that Global Steering has failed to demonstrate the absence of any genuine issue of material fact. The court heard the parties' arguments during short calendar on September 28, 2015.
To date, Global Steering has not filed an amended answer and special defense to Kelly Services' amended third-party complaint, which added factual allegations that were not included in the original third-party complaint.
DISCUSSION
" [S]ummary 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " [T]he 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). " '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." Id., 379. " The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Russell v. Mitchell Properties, Inc., 148 Conn.App. 635, 638, 87 A.3d 591, cert. denied, 314 Conn. 912, 100 A.3d 404 (2014). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011), cert. denied, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012).
" 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." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 316 Conn. at 821. " The 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 . . . 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 a motion for summary judgment 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 an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]" (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
In the present case, Global Steering argues that its motion for summary judgment should be granted as a matter of law because (1) the Workers' Compensation Act, General Statutes § 31-284, provides an exclusive remedy for the plaintiff/employee to seek against her employer, limiting claims for indemnification by a third party, and Kelly Services cannot overcome the Workers' Compensation Act's limitations as no independent legal relationship nor an express written indemnification agreement existed at the time of the incident between Global Steering and Kelly Services; (2) any agreement and/or contractual terms between these parties were ambiguous; and (3) Kelly Services has not established that Global Steering had exclusive control over Serrano at the time of the incident. In support of its arguments, Global Steering provides the following evidence: (A) an unauthenticated printout from the Connecticut Secretary of State's Commercial Recording Division regarding Global Steering; (B) unauthenticated copies of various orientation and training documents from Global Steering regarding Serrano; (C) an uncertified copy of portions of the deposition transcript of RoseAnn Burgess, an employee of Global Steering; and (D) a signed, but not sworn, statement by Serrano dated June 12, 2012.
General Statutes § 31-284(a) 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 injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation." On the basis of the arguments made by Global Steering and Kelly Services in the memorandum of law in support of the motion for summary judgment and the memorandum of law in support of the objection to the motion for summary judgment, respectively, these parties appear to agree that the Workers' Compensation Act applies to the present case, and they focus their discussions solely on the exclusivity provision of the act.
Global Steering has provided uncertified and/or unauthenticated copies of various deposition transcripts and documents in its exhibits. As evidence must be properly certified and authenticated to be considered by the court for purposes of a motion for summary judgment, where evidence is not properly submitted, but no objection or opposition is raised, the court may, in its discretion, choose to consider or exclude the same. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Kelly Services has not raised an objection and, therefore, the court will consider the evidence presented.
Kelly Services counters that there are genuine issues of material fact concerning the ongoing conduct of Global Steering and Kelly Services, and whether their conduct formed an implied contract, and/or if the terms of that implied contract created an independent legal relationship between these third parties. Additionally, Kelly Services argues that a question of fact exists as to whether Global Steering had exclusive control over the situation at the time the plaintiff was injured because Kelly Services did not retain control over Serrano's operation of the forklift. In support of its objection, Kelly Services provides the following evidence: (A) an uncertified copy of portions of the plaintiff's deposition transcript; (B) an unauthenticated copy of a memorandum titled " Introduction to Global Steering Systems, LLC, Watertown CT"; (C) an uncertified copy of portions of Burgess' deposition transcript; (D) an unauthenticated copy of the Agreement; (E) a signed and sworn affidavit of Kathleen Johnson, Operations Manager for Kelly Services; and (F) an uncertified copy of portions of the deposition transcript of Scott Zak, an employee of Global Steering.
Kelly Services mostly provided uncertified and/or unauthenticated copies of deposition transcripts and documents in its exhibits. See footnote 4. As Global Steering has not raised an objection, the court will consider the evidence presented.
Global Steering argues that because of the importance of the exclusivity provision in the Workers' Compensation Act, Kelly Services' rights, as a third-party plaintiff, to seek indemnification are limited to those instances whereby an independent legal relationship between Kelly Services and Global Steering exists. Such a relationship can be established by way of a separate contractual relationship between these parties. Global Steering argues that an independent legal relationship does not exist between these parties and, thus, judgment should enter for Global Steering as a matter of law.
Section 31-284(a) provides in relevant part: " An 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 employment or on account of death resulting from personal injury so sustained . . . All rights and claims between an employer . . . and employees . . . arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . ." See Twigg v. Structure Works, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-5005961-S, (September 13, 2011, Pickard, J.) (finding genuine issue of material fact exists as to whether defendant's counterclaim against intervening plaintiff/employer for contractual indemnification is subject to exclusivity provision of Workers' Compensation Act); Sanders v. R.R. Hiltbrand Construction, LLC, Superior Court, judicial district of New Britain, Docket No. CV-07-5003802-S, (March 11, 2011, Young, J.) (finding genuine issue of material fact exists as to whether defendant's counterclaim against intervening plaintiff/employer for common-law indemnification establishes an independent legal relationship arising from contract within exception to exclusivity provision of Workers' Compensation Act). " Because of the importance of the exclusivity provisions of the Workers' Compensation Act, this court has limited a third party's right to seek indemnification from an employer to those situations where there is an independent legal relationship between the third party and the employer, thereby generating a legal duty from the employer to the third party seeking indemnification." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451, 820 A.2d 258 (2003); see Ferryman v. Groton, 212 Conn. 138, 146, 561 A.2d 432 (1989) (" [T]he essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship . . . could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy provisions of § 31-284. What is necessarily implied need not be expressly alleged." [Internal quotation marks omitted.]) The third-party plaintiff concedes that at the time of the incident there was not an express written contract concerning the use of temporary employees between Kelly Services and Global Steering. Therefore, the issue before the court is whether Global Steering and Kelly Services formed an independent legal relationship based on an implied contract and if such implied contract included indemnification terms or clauses. (Third-Party Pl.'s Mem. of Law Obj. to Mot. for Summ. J., p.p. 2-3, 9-10, 12.)
" [A] contract implied in fact depends on an actual agreement that there be an obligation created by law that imposes a duty to perform, and it may be inferred from words, actions or conduct . . . It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact . . ." (Emphasis added; internal quotation marks omitted.) Connecticut Light & Power Co. v. Proctor, 158 Conn.App. 248, 253, 118 A.3d 702, cert. granted, 319 Conn. 905, 122 A.3d 639 (2015). " Whether [a] contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent . . . A true implied [in fact] contract can only exist [however] where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words . . . [B]oth express contracts and contracts implied in fact depend on actual agreement . . ." (Internal quotation marks omitted.) Id., 254. " To establish the existence of an implied in fact contract, the [third-party] plaintiff must prove that it rendered services with the reasonable expectation that the [third-party] defendant would pay for the services and that the [third-party] defendant accepted those services in a manner that reasonably would lead the [third-party] plaintiff to believe that the defendant intended to pay for the services." Id., 255-56.
In order for Global Steering to meet its burden for purposes of a motion for summary judgment, Global Steering must show that there is no genuine issue of material fact that an independent legal relationship did not exist between Global Steering and Kelly Services. Global Steering and Kelly Services agree that an express written contractual agreement to indemnify did not exist between these parties at the time of the incident. In Kelly Services' amended third party complaint, however, it alleges facts establishing an implied agreement between these parties, and, specifically, that an independent legal relationship and a duty to indemnify existed. (Am. Third-Party Pl. Compl., Count 1, ¶ ¶ 7-8, 14, Count 2, ¶ ¶ 9-10, 13-15.) Global Steering focuses its memorandum of law on the lack of an express written contract, but that fact is no longer in dispute, and Global Steering has not presented any evidence to challenge the allegations that an implied agreement existed and that an independent legal relationship resulted between these parties. See Sanders v. R.R. Hiltbrand Construction, LLC, supra, Superior Court, Docket No. CV-07-5003802-S. Therefore, there is a dispute as to the existence of an implied contract and its terms. Global Steering further argues that the terms, if any, of a contract between the parties are ambiguous, but it does not argue or present any evidence to deny that an implied contract existed, raising an issue of material fact. As previously noted, Global Steering, as the party moving for summary judgment, bears the burden of showing the nonexistence of any genuine issue of material fact. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. at 11. Global Steering did not meet its initial burden of showing that no genuine issue of material fact exists concerning an independent legal relationship based on an implied contract between Global Steering and Kelly Services for purposes of an exception to the exclusivity provision of the Workers' Compensation Act and, therefore, the motion for summary judgment must be denied as a matter of law.
In light of the fact that the court must deny summary judgment on the basis of a genuine issue of material fact concerning the threshold issue of the exclusivity provision of the Workers' Compensation Act, the court will not address Global Steering's arguments concerning the ambiguity of the contract terms and the claim for common-law indemnification.