Opinion
HHDCV106016087S
04-05-2016
Innovative Environmental, LLC et al. v. Windham Community Memorial Hospital, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
CESAR A. NOBLE, J.
The issue presented by the defendant's motion for summary judgment is whether the failure of an employer, who commenced an action pursuant to General Statutes § 31-293(a) against a tortfeasor whose conduct injured its employee, to provide to the employee the statutorily required notice of the action serves to preclude the operation of the applicable statute of limitation to bar the employee's own cause of action against the tortfeasor through intervention in the employer's suit. The court is persuaded that the plain language of the statute and an evaluation of the principles that inform the rights established by § 31-293(a) yield the conclusion that an employee's cause of action filed outside the statute of limitations is barred by the terms of the applicable statute. Accordingly, the defendant's motion for summary judgment as to the intervening plaintiff's cause of action is granted on the basis that it is barred by operation of the applicable statute of limitations.
General Statutes § 31-293(a) sets out the rights conferred on employees, employers and the Second Injury Fund where compensable injuries are sustained by employees as a result of the tortious conduct of third parties.
I
FACTS AND PROCEDURAL HISTORY
The parties concur that William Cole, the intervening plaintiff, suffered injuries on November 3, 2008, when he received an electrical shock from a defective metal exhaust hood which caused him to fall off of a ladder and land on his right shoulder. The defective exhaust hood is claimed to be a part of premises owned, maintained, and controlled by the defendant, Windham Community Memorial Hospital, Inc. The intervening plaintiff was in the course and scope of his employment with the original plaintiff, Innovative Environmental, LLC (Innovative) at the time of injury. Innovative paid workers' compensation benefits to the intervening plaintiff and timely brought suit by complaint dated October 26, 2010 pursuant to General Statutes § 31-293(a) seeking reimbursement from the defendant for the benefits it paid to the intervening plaintiff. Although § 31-293(a) obliged Innovative to immediately notify the intervening plaintiff in writing of the action and the name of the court to which it was returned it did not do so. The intervening plaintiff moved to intervene in Innovative's action against the defendant on December 19, 2014. As of that date the matter was scheduled for trial on January 7, 2015. On December 23, 2014 the court held a settlement conference in which the workers' compensation subrogation claim was settled. It was ultimately withdrawn on April 21, 2015. An objection to the motion to intervene was filed on January 2, 2015. It argued, inter alia, that the motion was untimely under both General Statutes § § 31-293(a) and 52-584. The defendant asserted that the intervening plaintiff had failed to file its motion to intervene within 30 days of receipt of what it deemed to be statutory notice under § 31-293(a) and that the suit was commenced more than four years after the applicable two-year limitations period imposed by § 52-584. The motion to intervene was granted by the court, Wahla, J., on February 11, 2015 with the finding that the intervening plaintiff was never notified of the plaintiff's action as required by § 31-293(a). This motion for summary judgment followed.
See Caseflow Request Entry #130.00 dated Dec. 16, 2014.
The defendant argues that the intervening plaintiff's cause of action is barred by the operation of General Statutes § 52-584 because the intervening plaintiff's action through joinder by way of the motion to intervene dated December 19, 2014 was brought more than two years from the date the injury was first sustained or discovered and more than three years from the date of the act or omission complained of, here November 3, 2008, the date of injury. The defendant also argues that the intervening plaintiff failed to join as a party plaintiff within thirty days of having received a notice of deposition which in the defendant's view adequately provides the notice required by § 31-293(a). The defendant finally argues that the plaintiff's action is barred by laches.
General Statutes § 52-584 provides: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
The intervening plaintiff counters that the decision of the court, Wahla, J., granting the motion to intervene, constitutes the law of the case which should be honored by this court. Alternatively, the intervening plaintiff asserts that the Supreme Court's decision in Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 716 A.2d 71 (1998), is dispositive of the issue relative to the applicability of § 52-584 to bar his action. The deposition notice, continues the intervening plaintiff, is insufficient to constitute the statutory notice requirement. Finally, the intervening plaintiff argues the doctrine of laches is inapplicable to actions at law.
II
STANDARD OF REVIEW
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 321.
III
DISCUSSION
A. The Statute
An analysis of the issues presented by the summary judgment motion begins with the statute which provides in relevant part:
(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer . . . a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury, and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection . . . If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery.General Statutes § 31-293(a).
General principles of statutory construction guide this court's analysis of § 31-293(a). " When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered. General Statutes § 1-2z . . ." Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Comp. Act, 320 Conn. 611 (2016), citing Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Comp. Act, 309 Conn. 412, 421-23, 72 A.3d 13 (2013).
Further, it is clear that § 31-293(a) is in derogation of the common law because it creates rights, contingencies and obligations which did not exist in the common law. Goodyear v. Discala, 269 Conn. 507, 518, 849 A.2d 791, 799 (2004). " [T]his statute, as with other statutes in derogation of the common law, should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . Thus, [the] statutory grant of right must be . . . limited to those matters clearly within its scope." (Internal quotation marks omitted.) (Internal citations omitted). Id.
The Supreme Court in Nichols provided an overview of General Statutes § 31-293(a). It observed that the statute " provides that when an employee has become injured and is entitled to seek damages from a third party, an employer who has paid or has become obligated to pay workers' compensation benefits to that employee may seek reimbursement from the third party in one of two ways. First, the employer may bring an action directly against the tortfeasor. Second, it may join an action commenced by the employee. If either an employer or an employee [ or the custodian of the Second Injury Fund ] commences an action against the tortfeasor, that party must notify the other that the action has been filed and must provide the other with the name of the court to which the action is returnable. Upon receipt of proper notice, an employer or employee has thirty days within which to join the action; failure to do so results in the abatement of that party's right of action." Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 163-64.
The import of Nichols on the issue presented in this motion is controverted by the parties and is thus deserving of closer analysis. The plaintiff in Nichols was injured while in the course of his employment on August 20, 1991. He brought suit against the tortfeasor on August 4, 1993, and the plaintiff's employer intervened on September 1, 1993 as a plaintiff seeking reimbursement for sums representing workers' compensation benefits paid to the plaintiff. The employer had been provided with the notice required by § 31-293(a) immediately prior to the running of the limitations period and complied with § 31-293(a) by moving to intervene within thirty days. The defendant moved for summary judgment claiming that the two-year period for bringing a claim under § 52-584 barred the intervening plaintiff's cause of action. The issue before the court was thus " whether a statute of limitations defense may be raised against an employer who, under § 31-293(a), intervenes in an employee's timely filed action against the tortfeasor within the thirty-day period but after the expiration of the applicable statute of limitations." Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 159. The court held that where intervention is attempted within the thirty-day period the expiration of the applicable limitations period does not bar the intervening plaintiff's action. Id., 170. Nichols thus differs in significant respect from this case in that, while the intervening plaintiff's cause of action was similarly brought outside of the applicable statute of limitations, the statutory notification of the original plaintiff's suit was provided in Nichols where none was provided here by Innovative.
The applicable statute of limitations in Nichols was § 52-584 with an expiration date of August 20, 1993.
The defendant asserts one additional difference, the status of the intervening plaintiff in Nichols as the employer and here as the employee. It claims that the distinction is significant because the employee's right to sue is available at common law and exists regardless of § 31-293(a). This, however, ignores the appellate court's directive that employers and employees are to be treated identically under the statute. Reichert v. Sheridan, 34 Conn.App. 521, 528, 642 A.2d 51 (1994), aff'd., 233 Conn. 251, 658 A.2d 96 (1995).
The Supreme Court identified " four overlapping principles that inform the rights established by § 31-293(a)" which included (1) the protection of an injured employee by maintaining their right of action to recover damages uncompensated by workers' compensation benefits; (2) the protection of employers by permitting them to seek reimbursement from third-party tortfeasors of workers' compensation benefits paid injured employees; (3) implementing the public policy of preventing double recovery by an injured employee by apportioning any recovery where the employer and employee are joined as plaintiffs such that the claim of the employer takes precedence of that of the injured employee, and (4) reinforcing the public policy that, between the employer and the employee, workers' compensation provides the exclusive remedy for personal injury to the employee. Id. at 164. These guiding principles were significant because the statute is silent as to " whether notice to an employer of an employee action tolls the statute of limitations applicable to the employee's claim." Id., 165.
The court concluded that because the employer's cause is derivative of the employee's no significant purpose would be served by requiring the employer to intervene within the applicable statute of limitations. Id., 165-6. This is so because the purpose of a statute of limitations is to protect defendants from stale claims against which they may have difficulty gathering facts, witnesses and evidence to afford a fair defense. Id. Here, the timely suit by the employee provided the defendant with the notice which the limitations statute intended to afford. Id. Finally, the argument that the statute of limitations operated as a bar to intervention within the thirty-day period after receipt of notice but after the applicable statute of limitations was contrary to the public policy against double recovery because it placed the control of the employer's recovery in the hands of the employee. Id., 167. As occurred in Nichols, " an employee could wait until the last days before being time barred from commencing an action to give timely notice to the employer [thereby rendering] the employer's timely intervention . . . impossible. The employee could deliberately, by filing at the last moment, bar any recovery by the employer and gain double recovery." Id. Thus, because the intervening party, here the employer, sought to intervene in a timely manner the statute of limitations was held to be tolled. This court notes that permitting a cause of action to survive the expiration of the limitations period comports completely with the plain reading of the statute which provides that if an employee, employer or custodian of the Second Injury Fund brings an action against a tortfeasor " the others may join as parties plaintiff in the action within thirty days" after notification of the suit.
It is important to note what Nichols did not decide and that is whether § 31-293(a) operates as a complete bar to the application of the application of limitations if no notice is provided by the original plaintiff to the party seeking to intervene. The court was careful to note that the " sole issue" it decided was whether the limitations defense was applicable where intervention occurred within thirty days of receipt of notice. Id., 159.
B. Law of the Case
C. The intervening plaintiff argues that the decision of the court, Wahla, J., permitting intervention constitutes the law of the case rejecting the application of the statute of limitations to which this court should adhere. " The law of the case . . . expresses the practice of judges generally to refuse to reopen what has been decided and it is not a limitation on their power . . . Where a matter has previously been ruled upon interlocutory, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided . . . Nevertheless, if the case comes before [a subsequent judge] regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (citations omitted) (internal quotation marks omitted). Lewis v. Connecticut Gaming Policy Bd., 224 Conn. 693, 697, 620 A.2d 780, 782-83 (1993).
This court does not view the decision to grant intervention as the law of the case regarding the motion for summary judgment because it involved only the issue of whether to permit intervention and not whether the statute of limitations barred the intervening plaintiff's cause of action once he had intervened. It is true that the defendant raised the statute of limitations in its objection to intervention. The court, however, found that the intervening plaintiff had never received the notice required by § 31-293(a) and therefore concluded that his motion to intervene was not untimely under that statute. Innovative Environmental, LLC v. Windham Community Memorial Hospital, Inc., Superior Court, judicial district of Hartford, Docket No. 106016087, 2015 WL 1014742, *1 (Feb. 11, 2015, Wahla, J.). The granting of a motion to intervene should not be confused with an explicit decision that the statute of limitations is inapplicable to an intervening plaintiff's cause of action once joined with the initial cause.
In Lakewood Metal Products, Inc. v. Capital Mach. & Switch Co., 154 Conn. 708, 226 A.2d 392 (1967) an injured employee filed a motion to intervene in a timely action commenced by his employer to recover workers' compensation benefits paid to the employee as a result of an injury allegedly caused by the tortious conduct of the defendant. The motion to intervene was filed outside of the applicable limitations period the court held that the trial court erred in denying the motion to intervene because no notice had ever been provided as required by § 31-293(a) and the time limitation established by the statute could not run until the notice was given. The court cautioned, however, that " [t]he granting of the motion to intervene will merely allow [the employee] to file his intervening complaint. Any pleas or motions which the parties deem appropriate can then be made. Also any defense which the defendants may wish to raise concerning statutes of limitations can then be pleaded as a special defense." Id., 710-11.
Intervention in an action only permits the intervening party to assert a cause of action. The granting of intervention by the court in no way places the court's imprimatur on the merits of the cause or even the viability of the intervening plaintiff's complaint. The only decision made by the court on such a motion is generally whether the intervention is necessary for a complete determination or settlement of any question involved therein. See General Statutes § 52-102. More specifically, in the context of General Statutes § 31-293(a) the only determination required of the trial court is whether the intervention is sought in a timely fashion. " It is undisputed that under § 31-293(a) the [party seeking intervention] ha[s] an absolute right to intervene and the trial court [is] powerless to deny such an intervention as long as proper application was timely made." Hallenbeck v. St. Mark The Evangelist Corp., 29 Conn.App. 618, 625, 616 A.2d 1170, 1174 (1992) (an employer's intervening complaint filed with the court without prior court approval is self-effectuating under § 31-293(a)). Because the granting of the motion to intervene was limited to the issue of whether the motion was timely made within the statutory thirty-day period limit this court does not consider the prior decision " the law of the case" as to this motion.
General Statutes § 52-102 provides in relevant part: " Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein . . ."
D. Laches
The defendant argues that the intervening plaintiff's claims are barred by the equitable doctrine of laches and refers the court to Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015) (" Laches consists of an inexcusable delay which prejudices the defendant . . ."), and Florian v. Lenge, 91 Conn.App. 268, 281, 880 A.2d 985 (2005) (" The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . ."). Each of these cases, however, made clear that laches is purely an equitable doctrine inapplicable to when a plaintiff has brought an action seeking legal relief within the statutory limitations period and is a defense allowed only in cases brought in equity. Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 399 and Florian v. Lenge, supra, 91 Conn.App. 282. See also Giordano v. Giordano, 39 Conn.App. 183, 214, 664 A.2d 1136 (1995). The intervening plaintiff's action is one at law seeking money damages and accordingly the equitable defense of laches is not applicable.
E. The Intervening Plaintiff Failed to Intervene within Thirty Days of Receiving Notice of the Underlying Claim
The defendant argues that the court should not reach the issue of whether the intervening plaintiff's claim is barred by § 52-584 because the intervening plaintiff failed to intervene within thirty days of receipt of a notice of deposition which the defendant suggests is sufficient notice under § 31-293(a). The intervening plaintiff's deposition was noticed in the underlying action on September 15, 2014. The deposition notice included the case caption, the docket number, the judicial district and the date of the notice in the underlying action. On October 6, 2014, the intervening plaintiff was deposed. In the view of the defendant this constitutes sufficient notice under § 31-293(a) to trigger the running of the thirty-day joinder requirement. The defendant directs the court's attention to Rana v. Ritacco, 236 Conn. 330, 672 A.2d 946 (1996), wherein the court repeated the rule that " under § 31-293, an employee or employer who brings a third-party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more." Id., 335-36 citing Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990), and Durrschmidt v. Loux, 230 Conn. 100, 104, 644 A.2d 343 (1994).
The intervening plaintiff demurs on the basis that the defendant has ignored the rule articulated in Worsham v. Greifenberger, 242 Conn. 432, 698 A.2d 867 (1997), that the due process clause of the fourteenth amendment to the United States Constitution requires that notice of the initiation of proceedings against a third party include not only the specific notice requirements set out in the statute but also notice that the failure of the potential intervenor to move to intervene within thirty days of the notice results in the complete abatement of the recipient's right to bring an action. Id., 444-45. The decision was predicated on observation that a right of action, including one for personal injuries, is a vested property interest for purposes of the due process clause. Id., 438. The court agrees with the intervening plaintiff that the deposition notice did not fulfill the requirements of notice set out in Worsham because it did not contain the caution as to abatement. Therefore, the court concludes that the intervening plaintiff never received the statutorily required notice.
Our case law makes clear that the failure of the original plaintiff to provide the statutory notice permits a party seeking intervention to intervene without consideration or hinder from the applicable statute of limitations. Lakewood Metal Products, Inc. v. Capital Mach. & Switch Co., supra, 154 Conn. 710. What the court in Lakewood Metal Products, Inc., declined expressly to resolve was the interaction of § § 31-293(a) and 52-584 where the statutory notice has not been given and intervention is sought outside of the period provided for in the applicable statute of limitations. " We need not decide whether the legislature, by enacting § 31-293 of the General Statutes, intended to shorten or lengthen or in any way affect statutes of limitation which might otherwise be applicable." Lakewood Metal Products, Inc. v. Capital Mach. & Switch Co., supra, 154 Conn. 710, fn.2.
F. Application of the Statute of Limitations Bars the Intervening Plaintiff's Joinder Outside of the Limitations Period where no Statutory Notice has been Provided
The court, having found that it is not bound by the " law of the case" doctrine, that laches is inapplicable and the intervention by the intervening plaintiff was timely due to the lack of statutory notice, must next address the question which the Supreme Court left unresolved in Lakewood Metal Products, Inc. and only partially resolved in Nichols which specifically addressed only the impact of § 31-293(a) on the applicable statute of limitations when the statutory notice was provided and intervention sought within the thirty-day period.
As the Nichols observed regarding its factual scenario, the language of § 31-293(a) does not illuminate the inquiry into whether the lack of notice from an employer (or for that matter an employee or the custodian of the Second Injury Fund) who is the first to initiate suit to a potential intervening party operates to toll the applicable statute of limitations. The court is persuaded that it does not.
The statute clearly expresses the right of an intervenor, whether employee or employer, to timely join his action with that of the other after receipt of the statutory notice. It is completely silent as to joinder of the cause of action where no such notice is provided. The statute simply does not provide expressly for joinder of all claims where no notice has been given and this court declines to do so. " No statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation [on] the common law which it does not fairly express." Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004).
Here, a conclusion that results in the tolling of the statute of limitations would serve to extend it for four years after the applicable statute of limitations. The Nichols decision found significant that its decision tolled the statute of limitations for at most thirty days. Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 166-67. The four-year difference is of concern where, although similar, the claim for damages asserted by an employer is limited to benefits paid to the employee which do not include the typical pain and suffering claimed in personal injury suits and which in fact are claimed here. See ¶ ¶ 11 and 12, Intervening Complaint, Dec. 19, 2014. Contrary to the scenario present in Nichols there are questions of fact and potentially law attendant to the employee's personal injury claim that do not arise in the defendant's preparation of a defense to the employer's claim. Further, while a delay of thirty days does not significantly implicate the gathering of " facts, evidence, and witnesses necessary to afford [the defendant] a fair defense, " a purpose served by the statute of limitations, there can be no doubt that longer periods, as the four years involved in this claim, adversely affect a defendant's ability to marshal a defense.
Another factor influencing the Nichols decision was that the public policy against double recovery would not be served by permitting an employee to " wait until the last days before being time barred from commencing an action to give timely notice to the employer [thereby rendering] the employer's timely intervention . . . impossible. The employee could deliberately, by filing at the last moment, bar any recovery by the employer and gain double recovery." Id., 167. No such public policy is implicated in the present case and does not serve to outweigh " any remote possibility of prejudice to a third-party tortfeasor that could arise from a thirty tolling of the applicable statute of limitations" as was found in Nichols. Id., 168.
None of the other principles which inform the rights established by § 31-293(a) are served by foreclosing a statute of limitations defense. The employee retains the common-law right to timely sue a third-party tortfeasor and the employer's protection derived from obtaining reimbursement for benefits paid is not implicated. Id., 164. In fact, the fourth identified principle, that of re-enforcing the public policy that, between the employer and the employee, workers' compensation provides the exclusive remedy for personal injury to the employee, is actually advanced by permitting the application of the statute of limitations because employees who sleep on their rights find themselves limited to the recovery obtained from their employer. As the Supreme Court has observed the statute was not intended to " protect those who are less than vigilant in safeguarding their own legal rights." Goodyear v. Discala, supra, 269 Conn. 521.
For all of the above reasons, the court finds that § 31-293(a) does not prevent the operation of § 52-584 where an employee, who never received the statutory notice required by the former statute, joins the employer's action outside of the limitations period. Because the intervening plaintiff's intervention is outside of the applicable statute of limitations the court grants the defendant's motion for summary judgment.