Opinion
No. CV05-4005494
February 27, 2006
MEMORANDUM RE MOTION TO STRIKE #113
The issue presented to the court is whether the employer's motion to strike count one, brought pursuant to General Statutes § 31-293a of the Workers' Compensation Act, should be granted on the ground that it names the employer as a defendant for insurance purposes and whether the motion to strike count two should be granted on the ground that the plaintiff husband has no claim for loss of consortium.
FACTS
On June 16, 2005, the plaintiffs, Mary Jeannin and her husband, Phillip Jeannin, filed a two-count amended complaint against Janet Porto-Byron and Curtin Livery Service (Curtin). In count one, Mary Jeannin alleges that on July 17, 2003, she and Porto-Byron were employees of Curtin. She further alleges that on that date, she and Porto-Byron were within the scope of their employment when they were involved in a collision due to the negligence of Porto-Byron. Mary Jeannin was a passenger and Porto-Byron was the driver of the vehicle owned by Curtin. In count two, Phillip Jeannin alleges a loss of consortium.
On May 20, 2005, Curtin filed a motion to intervene on the ground that Mary Jeannin's injuries arose out of her employment with Curtin and, accordingly, Curtin paid workers' compensation benefits to her for which it should be compensated.
On September 28, 2005, Curtin filed a motion to strike counts one and two of the plaintiffs' amended complaint on the ground that both counts are barred by General Statutes § 31-284(a) of the Workers' Compensation Act (the act) General Statutes § 31-275 et seq. Curtin submitted a memorandum of law in support of the motion. On October 11, 2005, Mary and Phillip Jeannin filed a memorandum of law in opposition arguing that Mary Jeannin is merely naming Curtin for the purpose of obtaining the legislatively mandated insurance benefits. The memorandum of law does not address Curtin's grounds for striking count two. The matter was heard on the short calendar on November 21, 2005.
Section 31-284(a) provides: "An employer who complies with the requirements of subsection (b) of this section [compliance with Workers' Compensation Act requirements] 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."
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotations marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005).
In support of the motion to strike, Curtin argues that count one should be stricken on the ground that the claim is barred by the exclusivity provision of § 31-284(a). Curtin maintains that § 31-293a, the motor vehicle exception to the exclusivity section of the act, allows an employee to sue a fellow employee if the action is based upon negligence in the employee's operation of a motor vehicle, but that the statute does not allow a cause of action against the employer. In her memorandum of law in opposition, Mary Jeannin counters that § 31-293a requires an employer to maintain auto insurance coverage for injuries sustained by one employee by another, and, accordingly, the employer should be named as a defendant merely so that she may obtain the legislatively mandated insurance benefits.
Section 31-293a provides, in relevant part: "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1 . . . No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the Commissioner of Motor Vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1, 1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void."
"Section 31-284(a), the exclusivity provision in the act, manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation. That trade-off is part and parcel of the remedial purpose of the act in its entirety." Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000). Section 31-284(a) provides in relevant part that "[a]n 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." "The Workers' Compensation Act . . . provides the sole remedy for employees and their dependents for work-related injuries and death . . . Its purpose is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment." (Citation omitted; internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000). "Under the Workers' Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery . . . The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451, 820 A.2d 258 (2003).
Section 31-293a is an "exception to the general exclusivity provision of the workers' compensation statute that permits an employee who has received workers' compensation benefits to bring an action against a fellow employee for negligence in the operation of a motor vehicle that caused the injuries." Surprenant v. Burlingham, 64 Conn.App. 409, 414, 780 A.2d 219 (2001). This section provides in relevant part that "[i]f an employee . . . has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1." General Statutes § 31-293a.
Both the Supreme and Appellate Courts have construed § 31-293a as permitting an employee to bring a suit against a fellow employee, but not permitting an employee to bring a suit against his employer. For example, in Hoyt v. Second Taxing District, 183 Conn. 508, 439 A. 2d. 428 (1981), the plaintiff was injured while a passenger in a motor vehicle owned by his employer. He sought to name his employer as a defendant on the ground that the employer was subject to liability since it was the owner of the vehicle that caused the plaintiff's injuries. The Hoyt court stated: "To support her position, the plaintiff points to language in [']31-293 which allows an employer who has been named as a party defendant in an action brought by an employee against a third person to join as a party plaintiff in such action . . . From this reference to an employer being named as a party defendant in an action, the plaintiff leaps to the conclusion that the legislature intended employers to be liable in their capacity as owners of injury-inflicting devices. We cannot conclude from the mere provision for realignment of parties under certain circumstances that the legislature intended to contradict what it had clearly and unambiguously stated in § 31-284." (Citation omitted; internal quotation marks omitted.) Hoyt v. Second Taxing District, supra, 510-11.
Section 31-293(a) provides, in relevant part: "In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action."
In Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 331, 743 A.2d 622 (1999), where the plaintiff was injured in a motor vehicle owned by the employer, the plaintiff also argued "that the defendant should be liable to the plaintiff as the owner of the vehicle . . ." The Appellate Court noted that this argument "duplicate[d] the argument advanced by the plaintiff in Hoyt, which our Supreme Court rejected." Szczapa v. United Parcel Service, Inc., supra, 331. "The [ Hoyt] court noted that such a reading of the statute would contradict what [the legislature] had clearly and unambiguously stated in § 31-284." (Internal quotation marks omitted.) Id. The Szczapa court "conclude[d] that § 31-293a does not authorize the plaintiff's action against his employer arising out of a fellow employee's negligent operation of the employer's motor vehicle." Id., 332.
In addition, the plaintiff in Szczapa sought "to escape the mandates of § 31-284 by claiming that the employer is, in essence, a `fellow employee' based on the theory of vicarious liability. The court also rejected that argument stating that [w]hile it is true that employers are generally liable for the actions of their employees, we cannot conclude that the legislature intended employees and employers to be treated alike for the purposes of § 31-293a . . . [and] if the employer and the alleged tortfeasor are [to be construed as] one, [then] the plaintiff is limited to the benefits provided by [workers'] compensation." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., supra, 56 Conn.App. 331.
The plaintiff in Carlo v. Regel, Superior Court, judicial district of New Haven, Docket No. CV 94 0361032 (January 20, 1995, Hodgson, J.) ( 13 Conn. L. Rptr. 379), made an argument similar to the plaintiff's argument in the present case. In Carlo, "the plaintiff argue[d] that because an employer must provide such liability coverage to address claims against its employees, the employer itself can be sued." Carlo v. Regel, supra, 13 Conn. L. Rptr. 379. The court noted that "[o]n its face, § 31-293a, does not authorize suit against the employer, but only suit against the fellow employee, and the statutes nowhere except suits arising from motor vehicle accidents from the general exclusivity provision of § 31-284(a) as to claims against employers." Id., 379.
In the present case, Mary Jeannin's attempt to name Curtin as a defendant is an attempt to circumvent the exclusivity provisions of § 31-284(a). Although § 31-293 requires that the employer maintain auto insurance coverage for injuries sustained by one employee from another employee, it does not follow that the employer may be named in the action as a defendant for the purpose of obtaining insurance benefits. This reasoning would cause Curtin to be liable because it is the owner of the injury-inflicting device, which the Supreme Court in Hoyt said is not a result that the legislature intended. Accordingly, Curtin's motion to strike count one is granted.
In support of its motion to strike count two, Curtin argues that Phillip Jeannin's claim for loss of consortium is barred by § 31-284(a) and prohibited under General Statutes § 52-555. The plaintiffs' memorandum of law in opposition does not address Curtin's motion to strike count two. [A]n action for loss of consortium, although independent in form, is derivative of the injured spouse's cause of action . . ." (Internal quotation marks omitted.) Jacoby v. Brinckerhoff, 250 Conn. 86, 91-92, 735 A.2d 347 (1999). "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Internal quotation marks omitted.) Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, n. 5, 882 A.2d 1254 (2005). Phillip Jeannin's claim for loss of spousal consortium is derivative of his wife's claim. Consequently, since Mary Jeannin's claim has been stricken, Phillip Jeannin's claim for loss of spousal consortium is also stricken.
General Statutes § 52-555d provides in relevant part: "No action with respect to any claim or cause of action for loss of consortium shall be brought by one spouse against an employer of the other spouse if such other spouse is entitled to receive, is receiving or has received benefits pursuant to chapter 568." It is submitted that the court does not have to address the defendant's second ground for striking count two as the count can be stricken under the defendant's first argument.
Accordingly the defendant Curtin's motion to strike counts one and two is granted.