Opinion
No. CV 05-400 78 28 S
April 18, 2006
MEMORANDUM OF DECISION
The defendants' motion to strike (#129) and the plaintiff's opposition to the motion to strike (#133) arise from the plaintiff's amended complaint filed February 7, 2006. The underlying cause of action stems from the plaintiff's workers' compensation claim related to injuries suffered by the plaintiff on April 6, 2000.
On November 21, 2005 this court granted the defendants, Risk Management and Gray's, motion to strike counts one and three of the plaintiff's original complaint. In Castelot-Cascone v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. CV05 4007828 (October 18, 2005, Doherty, J.), the court granted the defendants, Bridgeport, Liebowitz and Yale's, motion to strike counts one and three of the plaintiff's original complaint. As in the present complaint, counts one and three of the original complaint alleged that the plaintiff sustained injuries and losses as a result of the defendants' failure to promptly pay her workers' compensation claim.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
The plaintiff argues that she has sufficiently alleged a cause of action, in counts one and three of her amended complaint, for the defendants' intentional and willful misconduct in handling her workers' compensation claim. The plaintiff's reliance on the exception to the exclusivity of the workers' compensation act, as discussed in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) and DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005), is misplaced.
In Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 255, an injured employee brought an action seeking intentional tort damages for the partial amputation of two of his fingers and also asserted a claim for benefits under the Workers' Compensation Act. The Supreme Court explained that there is a narrow exception to the exclusivity of the Workers' Compensation Act when an intentional tort is alleged. The plaintiff must rely on either the intended tort theory test or the substantial certainty theory test. Id., 280. Under the intended tort theory test, "the actor must have intended both the act itself and the injurious consequences of the act." Id. In the present case, the plaintiff alleges that her injuries and damages were caused by the defendants' failure to give timely approval of payment for surgical treatment pursuant to an accepted workers' compensation claim. She has not alleged that the defendants intentionally caused her workplace injury. Consequently, the plaintiff has failed the intended tort theory test.
Further, the plaintiff also does not allege any facts to support the substantial certainty theory test. Under the substantial certainty theory test, "the actor must have intended the act and have known that the injury was substantially certain to occur from the act." Id., 280. "Substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct . . ." (Internal quotation marks omitted; emphasis in original.) Id. Here, the plaintiff has not made any factual allegations as to the defendants' intent to delay payment in order to cause injury and has also failed to make factual allegations that the defendants had knowledge that the plaintiff's injury was substantially certain to occur from a delay in payment.
The plaintiff's reliance on DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487, is also first placed. The court in DeOliveira "[recognized] that there could be an instance in which an insurer's conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act." (Emphasis in original.) Id., 507. No egregious conduct is alleged.
The plaintiff has not alleged a factual basis sufficient to bring her claim within the exception to the exclusivity bar of the Workers' Compensation Act articulated by the Supreme Court in Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 255 and DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487. Rather, the plaintiff merely argues that the nonpayment and delay in payment of workers' compensation benefits by the defendant bring her claim within the exception. The Supreme Court, however, has noted that nonpayment and delay in payment of a workers' compensation claim is not a suitable justification to escape the exclusivity provision of the Workers' Compensation Act. DeOliviera v. Liberty Mutual Ins. Co., supra, 273 Conn. 506. "The legislature . . . expressly has conferred jurisdiction upon the [workers' compensation] commission to adjudicate claims related to untimely payment of benefits and has developed a scheme under which remedies may be provided." Id., 496-97.
Because the Supreme Court has recognized that the Workers' Compensation Act has built-in remedies for delays in payment and for nonpayment, and the plaintiff has not alleged sufficient facts to bring her claims within the exception to the exclusivity bar of the Act, the plaintiff's present claims must be stricken.
For the foregoing reasons, the defendants' motion to strike counts one and three of the plaintiff's amended complaint is granted.