Opinion
No. CV 91 03 60 83 S
January 13, 1998
MEMORANDUM OF DECISION
This matter was tried to the court on July 17 and 18, 1996. The plaintiff, Edward Corcoran (Corcoran), filed suit against the defendant, F W Welding (F W), claiming that he is owed $7,729.50 in commissions on rentals he handled while employed by F W in 1988 and 1989. Pursuant to the order of the court, the parties have submitted posttrial memoranda concerning the applicable statute of limitations.
The court finds that the applicable statute of limitations for Corcoran's cause of action under General Statutes § 31-72 is General Statutes § 52-596, which applies to payment of remuneration for employment. The evidence demonstrates that Corcoran was paid monthly commissions on rentals in twenty-three out of twenty-four months at issue here. The court finds, therefore, that the payment of commissions was periodic in nature. Accordingly, § 52-596 is the applicable statute of limitations. Further, the statute began to run at the time that the rental customers made payment to F W. Corcoran testified that commissions were due and owing upon payment to F W by the rental customer. However, Corcoran did not file the present suit until February 6, 1992, and therefore his claims for commissions owed from 1988 and 1989 are outside the two year statute of limitations period of § 52-596.
General Statutes § 31-72 states in pertinent part: "When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.
General Statutes § 52-596 states: "No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558."
In addition, Corcoran has failed to meet his burden of proof that he was entitled to the commissions at issue. The trial exhibits and testimony of Harold Roger Funk (Funk), vice president and chief operating officer of F W, indicate to the court that F W, i.e. Funk, set the rules as to when and to whom commissions for rentals would be paid. The exhibits and testimony also indicate that F W had already paid Corcoran all commissions due him. Other commissions claimed by Corcoran were not due for the reason either that F W was never paid by the rental customer for the rental at issue, F W was unable to locate sufficient information with which to verify whether a commission was due, or, finally, the great catch-all, that Corcoran, in the opinion of Funk, was simply not entitled to a commission for the respective rental. Furthermore, as there was no written employment agreement between Corcoran and F W, the employer, and the employer, i.e. Funk, set the rules as to whom and when commissions were due, Corcoran, unfortunately for him, was an employee at will in the eyes of the court.
For the foregoing reasons, judgment shall enter on behalf of the defendant, F W Welding Service, Inc.
Skolnick, J.