Opinion
No. CV09 502 29 42
October 29, 2009
MEMORANDUM OF DECISION
Before the court is the intervening plaintiffs, Societe De L'Assurance Automobile Du Quebec (Societe), motion to intervene as a plaintiff. This action arises out of a motor vehicle accident that occurred in Fairfield, Connecticut on April 12, 2007. On February 5, 2009, the plaintiff, Zalmen Friedman, commenced this action by service of process against the defendant, Michael Stackhouse. The plaintiff filed a one-count complaint dated January 23, 2009, in which he alleges that the defendant negligently caused a collision of their respective automobiles resulting in injuries to the plaintiff.
On July 10, 2009, the Societe filed this motion to intervene. In its motion, the Societe asserts the following. The Societe is an agency created by statute in the province of Quebec, Canada. Its purpose is to administer the no-fault automobile liability insurance system created there. In Quebec, actions for bodily injury arising from the negligent operation of a motor vehicle have been prohibited by statute. A Quebec citizen who is injured anywhere or a foreign citizen who is injured in Quebec can only seek redress for their injuries through the no-fault compensation system administered by the Societe. The victim will be able to have their medical bills paid, will receive compensation for lost wages and may receive a relatively small amount for their pain and suffering, regardless of fault.
In the event that a Quebec citizen is injured in a foreign jurisdiction which allows for tort compensation, Section 83.60 of the Automobile Act of Quebec provides that: "Where the Societe compensates a person by reason of an accident that occurred outside Quebec, it is subrogate to the person's rights and is entitled to recover the indemnities and the capital representing the pensions the Societe is required to pay from any person not residing in Quebec who, under the law of the place where the action occurred, is responsible for the accident and from any person liable through compensation for bodily injury caused in the accident by such non resident."
The plaintiff, a citizen of Quebec, sustained injuries as a result of a motor vehicle accident in Connecticut. As a result of this accident, the Societe paid $27,306.09 in Canadian dollars to the plaintiff. Of those monies, $25,135.72 was for income replacement, $1,860.21 was for miscellaneous expenses and $310.16 was for medical professional fees. On June 24, 2009, the Societe filed a motion to intervene as a plaintiff in this action. "Intervention as a party may be sought under our rules of practice either as of right or with the permission of the court . . . Practice Book [§] 9-18 authorizes the court to allow a person to intervene as a party if a complete determination cannot be had without the presence of other parties." (Citations omitted.) Faires v. Pageau, Superior Court, judicial district of New Haven, Docket No. CV 970403163 (October 26, 1999, Alander, J.) [ 25 Conn. L. Rptr. 635]. "A trial court exercising its discretion in determining whether to grant a motion for permissive intervention balances several factors [including]: the timeliness of the intervention, the proposed intervener'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 [before the court]." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 461, 904 A.2d 137 (2006).
The Societe requests permission to intervene on the grounds that it is the only procedural vehicle which exists for it to recover any payments it made to the plaintiff through subrogation. The defendant objects to the motion, arguing that there is no basis under Connecticut law to permit the Societe to intervene in this action to recover no-fault benefits that were paid pursuant to Quebec law. It is the defendant's position that Connecticut's anti-subrogation statute, General Statutes § 52-225c, prohibits insurers from asserting subrogation rights for some of the same benefits that the Societe is seeking to recoup through its proposed intervening complaint.
Section 52-225c provides: "Unless otherwise provided by law, no insurer or any other person providing collateral source benefits as defined in section 52-225b shall be entitled to recover the amount of any such benefits from the defendant or any other person or entity as a result of any claim or action for damages for personal injury or wrongful death regardless of whether such claim or action is resolved by settlement or judgment. The provisions of this section shall apply to insurance contracts issued, reissued or renewed on or after October 1, 1986."
General Statutes § 52-225b provides: "For purposes of sections 52-225a to 52-225c, inclusive: `Collateral sources' means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. `Collateral sources' do not include amounts received by a claimant as a settlement."
In Hassett v. New Haven, 49 Conn.Sup. 7, 858 A.2d 922 (2004), aff'd, 91 Conn.App. 245, 880 A.2d 975 (2005), the court determined whether amounts paid by employers pursuant to wage continuation plans would qualify as a "collateral source" pursuant to § 52-225b. In its analysis of the issue, the court discussed the legislative history of § 52-225b. The court stated that, "[t]he legislative history of § 52-225b makes it clear that amounts paid by employers pursuant to wage continuation plans are not to be treated as `collateral sources.' . . .
"The bill originally drafted to enact the statute now codified at § 52-225b was reported by the Joint Standing Committee on the Judiciary on May 8, 1985. The original bill provided that: `Collateral sources' means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health, sickness, or income disability insurance, automobile accident insurance that provides health benefits or income disability coverage, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services; (3) any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability. H.B. No. 5364, § 2(a), January Session, 1985 . . .
"On May 29, 1985, the House amended the original bill by passing House Amendment Schedule B. Schedule B deleted the references to `income disability insurance' in proposed clause (1) and, more importantly for present purposes, deleted proposed clause (3) in its entirety. Conn. House Journal, May 29, 1985, p. 2095. The bill, thus amended, was subsequently enacted. Public Acts 1985, No. 85-574. (Internal quotation marks omitted.) Hassett v. New Haven, supra, 29 Conn.Sup. 12-13.
The court in Hassett held that, "[t]he adoption of House Amendment Schedule B is clear evidence that the legislature intended to change the provisions of the original bill . . . Judicial treatment of amounts paid pursuant to wage continuation plans as collateral sources would be wholly inconsistent with the legislature's action in passing House Amendment Schedule B. Under these circumstances, it would be inappropriate to treat the amount received by [the plaintiff] from his employer to reimburse him for lost wages and overtime as a collateral source." (Citation omitted; internal quotation marks omitted.) Id., 13-14.
In the present case, $25,135.72 of the $27,306.09 the Societe paid to the plaintiff was for income replacement. Similar to the employer wage continuation plan in Hassett v. New Haven, the income replacement payments made to the plaintiff in this case would not qualify as a collateral source pursuant to § 52-225b.
It is unclear as to whether "miscellaneous expenses" would qualify as a collateral source as such expenses are not specified in the Societe's brief. Medical professional fees would qualify as a collateral source pursuant § 52-225b. The question, therefore, becomes whether the Societe should be allowed to intervene as a plaintiff to recover the $25,135.72 it paid to the plaintiff in income replacement.
The Societe argues that it should be permitted to intervene as a plaintiff because: 1) the action is timely; 2) the Societe has an interest in the controversy; 3) the Societe's interests will not be adequately represented by the plaintiff; 4) the Societe's intervention will not cause delay or prejudice to any of the parties; and 5) the Societe's inability to intervene would cause further litigation between the parties. The defendant asserts that even if the insurance benefits are based on enforceable subrogation rights, the motion to intervene should still be denied. It is the defendant's position that the subrogation rights that the Societe posses are no greater than the plaintiff's own rights to seek recovery for the alleged injuries and damages.
In Faires v. Pageau, supra, Superior Court, Docket No. CV 97 0403163 [ 25 Conn. L. Rptr. 635], a health insurance plan administrator, United Healthcare, asked permission to intervene in the action to protect its rights to subrogation and reimbursement of its medical expense payments on behalf of the plaintiff. United Healthcare was "a self-funded health and welfare plan governed by the Employment Retirement Income and Security Act of 1974, 29 U.S.C. § 1001 et seq. [(ERISA)]." Id. "Because its health care plan [was] established pursuant to ERISA, United Healthcare [was] not prohibited by General Statutes § 52-522c from enforcing its right to subrogation and seeking reimbursement for the medical care benefits it paid out on behalf of the plaintiff . . . ERISA exempts self-funded ERISA plans from state laws that prohibit subrogation of personal injury claims." Id.
The court in Faires reasoned that "United Healthcare's right of subrogation simply place[d] it in the shoes of the plaintiff . . . in seeking payment from the defendants of the medical expenses allegedly incurred as a result of the negligence of the defendants. Subrogation is a legal fiction through which one who . . . pays the debt of another, is substituted to all the rights and remedies of the other . . . United Healthcare has no greater rights than those possessed and asserted in this action by the plaintiff . . . its insured. The insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses. The principle has been frequently expressed in the form that the rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter." (Citations omitted; internal quotation marks omitted.) Id.
The court found that, "[s]ince United Healthcare [had] only such rights as those possessed by the plaintiff . . . its presence as a party in [the] lawsuit [was] not necessary to resolve the controversy and its intervention [would] add nothing of value." Id. The court went on to say that "there [was] no reason to believe that [the plaintiff] [could not] adequately represent [their] shared interest in recovering past medical expenses . . . Should [the plaintiff] be successful in obtaining economic damages, United Healthcare [would be] free to pursue reimbursement of the medical expenses that it paid on his behalf from him." Id.
In the present case, the Societe is asking permission to intervene in this action to protect its rights to subrogation and reimbursement of its income replacement payments to the plaintiff. As was the case in Faires, the Societe's rights are no greater then those possessed by the plaintiff and the Societe's presence in the lawsuit is not necessary to resolve the controversy. There is no reason to believe that the plaintiff in this action cannot adequately represent the Societe's interests. Even if the plaintiff does not believe that the Societe is entitled to reimbursement from the plaintiff, as the Societe asserts, that does not mean that the plaintiff will fail to seek full recovery from the defendant. Should the plaintiff be successful in obtaining damages from the defendant, the Societe is free to pursue reimbursement from the plaintiff. A determination as to whether the Societe is entitled to reimbursement can be made at that time.
Accordingly, the Societe's motion to intervene is denied.