Opinion
No. 4002335.
December 13, 2006.
MEMORANDUM OF DECISION
The action arises out of injuries and damages allegedly sustained as a result of the plaintiff's slip and fall in a parking lot at 50 Palmer Street in Norwich, Connecticut on February 21, 2003. On February 24, 2005, the plaintiff, Angela Amburn, originally filed an eight-count complaint, and, subsequently, on January 27, 2006, an amended four-count complaint against the defendants, Kindred Healthcare Operating, Inc., Southeast Landscaping, LLC, Brian Claspell and Arden Claspell.
The first count alleges that Kindred Healthcare Operating, Inc., owned the parking lots and buildings at 50 Palmer Street and was negligent in allowing snow and ice to form on its parking lot and failing to warn of the icy condition at the time of the plaintiff's fall. The second, third and fourth counts mirror the first count except that they allege negligence against Southeast Landscaping, LLC (landscaper/snow remover), Brian Claspell and Arden Claspell, who had a contract with the defendant to remove snow from the parking lot. On April 12, 2006, the defendant filed an amended answer, raising a special defense that the plaintiff's claim is barred by the Workers' Compensation Act (act), General Statutes § 31-275 et seq.
The present motion for summary judgment only involves Kindred Healthcare Operating, Inc., and not the other defendants. Therefore, Kindred Healthcare Operating, Inc. is referred to as the defendant hereinafter.
On July 27, 2006, the defendant moved for summary judgment on the ground that the exclusivity provision in § 31-284 of the act bars the plaintiff from bringing a negligence claim against the defendant. In support of its motion, the defendant has submitted a memorandum of law, an affidavit of Douglas Abell, its senior director and corporate counsel, a copy of Kindred Healthcare's employee incident report, and a copy of Kindred Healthcare's claim status report. On September 8, 2006, the plaintiff filed a memorandum of law in opposition to the motion, accompanied by an affidavit of Thomas W. Viens, a private investigator, and an affidavit of the plaintiff. Both parties each filed a supplemental memorandum of law.
The employee incident report and the claim status report are unauthenticated and uncertified. Since the plaintiff has objected to their admissibility, the court may not consider them. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
The plaintiff also attached to her affidavit a copy of her W-2 wage and tax statement. Although the plaintiff has not sufficiently authenticated the uncertified copy, the defendant has made no objection to the plaintiff's use of the document. Therefore, the court may consider it in ruling on this motion for summary judgment. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
DISCUSSION CT Page 22327
"Practice Book [ § 17-49] provides that summary 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.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "[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). "Mere assertions of fact [however] . . . 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.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).The defendant moves for summary judgment on the ground that the exclusivity provision of the act bars the plaintiff's negligence claim against it because it was the plaintiff's employer for the purposes of the act at the time of her injury. The defendant argues that Abell's affidavit attests that the plaintiff was employed as a nursing assistant at Kindred Nursing Services East, LLC, doing business as Hamilton Rehabilitation and Healthcare Center (Healthcare Center), one of the defendant's subsidiaries; that her alleged injuries occurred during the course and scope of her employment at the Healthcare Center; that the defendant paid the plaintiff's workers' compensation insurance premiums and she has received compensation benefits from its insurer for her slip and fall on February 21, 2003; and, that the defendant controlled the manner in which the plaintiff performed her work as well as the work of all the employees at the Healthcare Center.
In response, the plaintiff argues that there exists a factual issue as to whether the Healthcare Center and the defendant were separate and distinct corporations or whether the defendant should be considered her employer because they were engaged in a joint venture. The plaintiff further argues that the defendant has not shown that it had the right to control the means and methods used by her in the performance of her job, and, therefore, has failed to demonstrate that it was her employer for purposes of the act. In support of her arguments, the plaintiff has submitted an affidavit in which Thomas W. Viens, Jr., a private investigator retained by her affirms that, according to the title records at the Norwich land records and assessor's office, the defendant was the sole owner of the property and appurtenances located at 50 Palmer Street in Norwich on February 21, 2003, the date of her incident. Viens also attests that his search with the secretary of the state revealed that the Healthcare Center was a separate and distinct corporation from the defendant, as of February 21, 2003. In addition, the plaintiff attests in her affidavit that, as evidenced by her W-2 wage and tax statement, her employer was the Healthcare Center at the time of her injury.
"In a proper case a defendant can move for summary judgment on the ground that the Workers' Compensation Act is the exclusive remedy for an employee injured in the course of employment." Steinberg v. Stop Shop Companies, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 91 279136 (July 20, 1993, Fuller, J.) (9 Conn. L. Rptr 406, 407), citing Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988). The workers' compensation law in Connecticut provides in pertinent part that 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 . . ." General Statutes § 31-284(a). "When a plaintiff has filed a workers' compensation claim against a defendant employer seeking compensation for injuries, and the employee has been paid such benefits, the employee is thereafter precluded from seeking damages from the employer in a common law tort action. Horney v. Johnson, 167 Conn. 621, 622-23, 356 A.2d 879 (1975)." Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 744, 592 A.2d 397, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991).
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."
The key issue in the present case is whether the defendant should be considered to be the plaintiff's employer for the purpose of the workers' compensation law. Section 31-275(10) defines an employer to include "any person, corporation, limited liability company, firm, partnership . . . or the legal representative of any such employer . . ." "[O]nly those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in § 31-275(10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee." Doe v. Yale University, 252 Conn. 641, 680, 748 A.2d 834 (2000).
As a matter of law, "a parent corporation cannot ordinarily claim the workers' compensation defense for an employee who works for a subsidiary corporation." Steinberg v. Stop Shop Companies, Inc., supra, 9 Conn. L. Rptr. 407. The mere fact that a plaintiff's employer is a subsidiary of a defendant corporation does not compel the court to treat the defendant as the plaintiff's employer for the purpose of the act. See Wheeler v. New York, N.H. H.P. Co., 112 Conn. 510, 153 A. 159 (1931). In fact, "the courts of Connecticut and other states do not allow the parent corporation to claim the workers' compensation defense by claiming that it is the alter ego of the subsidiary, by a reverse application of the doctrine of piercing the corporate veil, or that the parent and subsidiary corporations are so intertwined as to be a single entity." Steinberg v. Stop Shop companies, Inc., supra, 406. The doctrine of piercing the corporate veil "is not customarily used for the benefit of the corporations involved." Id.
"[T]he majority of states do not extend the exclusive remedy provision of a workers' compensation act by treating parent and subsidiary corporations as a single entity." Id.; see Latham v. Technar, Inc., 390 F.Sup. 1031, 1037 (E.D.Tenn. 1974) ("the presence of a common insurer as between the holding company and the wholly owned subsidiary does not automatically establish a single employer unit, nor does identity of management create identity for workmen's compensation purposes"); Peterson v. Trailways, Inc., 555 F.Sup. 827, 833 (D.Colo. 1983) ("attempts to 'pierce the corporate veil' predicated upon common insurance coverage, common payroll funding, and identity of management have failed"); Gulfstream Land Development Corp. v. Wilkerson, 420 So.2d 587, 589 (Fla. 1982) (holding that an employee of a subsidiary can sue a parent corporation, where the employee was injured while working on property owned by the parent corporation and the parent and subsidiary had a common workers' compensation insurer); Vernon v. Supermarket Services Corp., 250 N.J.Super. 8, 10, 593 A.2d 345 (App.Div. 1991) ("a corporation may not share the immunity [the workers' compensation law] provides to a sister subsidiary corporation"); Hearn v. Petra Intern. Corp., 710 P.2d 769, 771 (Okla.Ct.App. 1985) ("parent corporation is a third party against whom plaintiff may maintain a common law tort action"); Williams v. McAllister Bros., Inc., 534 F.2d 19, 21 (2d Cir. 1976) ("[o]wnership by a parent of all its subsidiary's stock has been held an insufficient reason in and of itself to disregard distinct corporate entities"); Stoddard v. Ling-Temco-Vought, Inc., 513 F.Sup. 314, 325 (C.D.Cal. 1980) ("the vast weight of authority is that an injured employee of a subsidiary corporation . . . may . . . bring a third-party claim against the subsidiary's parent or sibling corporation").
In the present case, in order to assert its status as the plaintiff's employer, the defendant relies on a different theory, i.e., that Healthcare Center and the defendant corporation should be treated as a joint venture. In Doe v. Yale University, supra, 252 Conn. 668-69, the court held that "a joint venture may be considered an employer for workers' compensation purposes" because of "the similarities between joint ventures and partnerships." The question is then under what circumstances may the court treat a joint venture as an employer under the act.
"Whether a joint venturer is an employer under the act is . . . a question of the specific joint venturer's degree of control over the alleged employee. The 'right to control' test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has 'the right to control the means and methods' used by the worker in the performance of his or her job . . . The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent . . ." (Citations omitted; internal quotation marks omitted.) Id., 680-81. "One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained . . . The controlling consideration . . . is: Has the employer the general authority to direct what shall be done and when and how it shall be done—the right of general control of the work?" (Citation omitted; internal quotation marks omitted.) Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629, 173 A.2d 497 (1961). "It remains the burden of the party asserting the exclusivity of the act to prove that a joint venture existed, that it exercised the requisite control over the injured party to satisfy the right to control test, and that the injured party was injured while acting in furtherance of the joint venture." Doe v. Yale University, supra, 252 Conn. 684.
A mere showing that a corporation provided management services to a putative employer is not sufficient to meet the right to control test. In Owens v. A. Anastasio Sons Trucking Co., Superior Court, judicial district of New Haven, Docket No. CV 99 04213675 (June 30, 2000, Alander, J.), where the plaintiff, a truck driver, sued the defendant trucking company, the court rejected the plaintiff's argument that, pursuant to a management service contract between the defendant and a third party, the third party became the plaintiff's employer with the right to control the plaintiff's work. The court in Owens concluded that the defendant was the plaintiff's employer, but the third party was not, because the defendant simply hired the third party to manage the human resource aspects of the business such as payroll or workers' compensation benefits and the third party was "merely acting on behalf of the defendant in handling the plaintiff's workers' compensation claim." Id. Similarly, in Michaud v. Woodbury Realty Co., Superior Court, judicial district of New Haven, Docket No. CV 400500 (February 7, 2002, Munro, J.), the court rejected the plaintiff's argument that a third party who provided property management services to the defendant was the plaintiff's employer.
In the present case, the affidavit submitted by Douglas Abell, senior director and corporate counsel of the defendant, establishes the following facts. The plaintiff's employer was a first tier subsidiary of the defendant at the time the plaintiff sustained injuries. The defendant provided management services to the plaintiff's employer, including, inter alia, "information services, clinical support, human resources management, employee benefit plan development, training, insurance program management, facilities management support, legal services and advice, accounts receivable, collection, accounts payable, tax, reimbursement and licensure and treasury functions." The defendant drafted the employee policy and procedure manuals, and paid the insurance premiums for the workers' compensation policy, for its subsidiaries including the plaintiff's employer. After the incident on February 21, 2003, the plaintiff applied for and received the workers' compensation benefits from the policy in the total amount of $26,757.15.
The defendant fails to demonstrate, however, that it had the right to control the means and methods used to perform the plaintiff's job at the time of her injury. The defendant's affidavit is not sufficient to determine whether the defendant had the right to control the plaintiff's job performance or merely provided management services to the plaintiff's employer. For example, the evidence showing that the defendant drafted the employee policy and procedure manuals for its subsidiaries does not establish that the defendant had the right to interfere with the employees' performance. The defendant's mere assertion that these manuals could control the plaintiff's performance at work is insufficient to establish the existence of the defendant's right to control.
Likewise, the defendant's mere showing that the defendant paid the insurance premiums for the workers' compensation policy does not establish that the defendant had the right to control the plaintiff's job performance. The existence of a common insurer between a parent company and a wholly owned subsidiary does not mean that the parent company has a right of control over the employees working for the subsidiary corporation. See Gulfstream Land Development Corp. v. Wilkerson, supra, 420 So.2d 589 ("[t]he decision of a parent to include a subsidiary within a joint workmen's compensation policy is usually an economic one").
The defendant's motion for summary judgment is denied.