Opinion
No. CV03-0197795 S
August 11, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (NO. 118)
Procedural and Factual Background
On November 5, 2003, the plaintiff, David R. Konner, filed a one-count complaint against the defendants, Feriz Bajra and Greenwich Taxi, Inc., for injuries allegedly sustained from an automobile accident. In the complaint, the plaintiff alleges that he was injured when the vehicle he was operating was struck by a vehicle operated by Bajra and owned by Greenwich Taxi, Inc. on Interstate 95 in Stamford. On December 22, 2003, the plaintiff's employer, Petro Trust/Venezia Transport, Inc. (Petro Trust), filed a motion to intervene along with an intervening complaint against the defendants to recover sums paid to the plaintiff for workers' compensation benefits. The court granted the motion to intervene on January 12, 2004.
On March 30, 2006, the defendants filed a motion to dismiss the intervening complaint and a memorandum in support thereof. The defendants move to dismiss the complaint on the grounds that the court lacks subject matter jurisdiction because Petro Trust is an out-of-state employer that has made no payments under to the Connecticut Workers' Compensation Act. Petro Trust opposes the motion to dismiss. The matter was heard on the short calendar April 24, 2006.
At the request of the court, following argument at short calendar, both parties have submitted affidavits in support of their memoranda.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211 (2006). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id. Consequently, "[i]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).
The defendants move to dismiss the intervening complaint on the ground that the court lacks subject matter jurisdiction because Petro Trust cannot recover under Connecticut law. Specifically, the defendants maintain that Petro Trust is not entitled to reimbursement under Connecticut's Workers' Compensation Act because an employer may not seek to recover benefits paid to an injured employee under the laws of another state. The defendants maintain that recovery is barred under Connecticut law because all workers' compensation benefits paid by Petro Trust to the plaintiff were made under Pennsylvania, not Connecticut law. The defendants further argue that Petro Trust is not protected by the Connecticut workers' compensation statute as it only applies to Connecticut employers.
Petro Trust argues that under the Connecticut Workers' Compensation Act an employer is entitled to compensation for any amount already paid in benefits as well as an amount equal to the present worth of any probable future payments. Petro Trust also argues that it has made payments to the plaintiff pursuant to the Connecticut Workers' Compensation Act, rendering the defendants' argument moot. At short calendar, counsel for Petro Trust supported this argument by representing that five hundred dollars in benefits had been paid to the plaintiff under Connecticut law. At the request of the court, Petro Trust has submitted an affidavit attesting to the fact that on April 21, 2006 a check for five hundred dollars had been issued to the plaintiff with the notation "[workers' compensation] benefit for CT [without] prejudice or permanency." The plaintiff, however, submitted an affidavit by his attorney which acknowledges receipt of the $500 check on or about April 27, 2006, but denies that he has negotiated the check.
Petro Trust also argues that the defendants' motion to dismiss is untimely as it was not filed within thirty days of the defendant's appearance. The court need not address this argument as "[t]he requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons Paroles, 278 Conn. 197, 201, 896 A.2d 809 (2006).
Said affidavit was received by this court on April 28, 2006.
"General Statutes § 31-293 grants to an employer who has paid workers' compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors . . ." (Citation omitted; internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990). In Greene v. Verven, 203 F.Sup. 607 (D.Conn. 1962), however, the United States District Court for the District of Connecticut held that § 31-293 "is applicable only to Connecticut employers obliged to pay benefits under the Connecticut Workmen's Compensation Act." (Emphasis in original) Id., 611. In Greene, the court reasoned that "[t]he Connecticut statute is for the benefit and protection of Connecticut employers and workmen's compensation insurers operating under the Connecticut Workmen's Compensation Act. It is inapplicable to non-Connecticut employers operating under non-Connecticut workmen's compensation laws." Id.
General Statutes § 31-293 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 who has complied with the requirements of subsection (b) of section 31-284, 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."
In Stoker v. Marriott Corp., Superior Court, Judicial District Hartford-New Britain at Hartford, Docket No. CV89 0369701 (February 3, 1994, Corradino, J.) ( 11 Conn. L. Rptr. 47), the court dismissed a claim for reimbursement of benefits paid by an out-of-state employer to an injured employee pursuant to New Hampshire law. In granting the motion to dismiss, the court explained that "[s]ection [31-293(a)] only provides an employer the right to intervene where the benefits paid were made through the Connecticut State Workers' Compensation Act . . . This court has no jurisdiction over the subject matter of the intervening complaint so that it must be dismissed." (Citations omitted.) Id. More recently in Quality Distribution Transplastics, LLC, v. Central Construction Industries, LLC, Superior Court, Judicial District of Windham at Putnam (March 23, 2005, Riley, J.) ( 39 Conn. L. Rptr. 22), the court dismissed a Massachusetts employer's negligence claim on the grounds that court lacked subject matter jurisdiction because the benefits had been paid under Massachusetts and not Connecticut workers' compensation laws.
Like the employers in the aforementioned cases, Petro Trust is an out-of-state employer that has made workers' compensation payments to the injured plaintiff under the laws of another state. Petro Trust, however, argues that unlike the employers in prior cases it has also made workers' compensation benefits to the plaintiff under the laws of Connecticut such that subject matter jurisdiction is properly vested in this court. As amended, Paragraph 4 of the intervening complaint alleges that: "As a result of his injuries the plaintiff, David Konner, sought workers' compensation benefits in both Connecticut and Pennsylvania and was paid benefits in both jurisdictions." That allegation, however, first came into the case by virtue of Petro Trust's Amended Intervening Complaint filed on April 11, 2006 subsequent to the March 30 filing of the Motion to Dismiss. It therefore cannot be considered in ruling on the motion to dismiss. "[O]nce the question of lack of jurisdiction of a court is raised [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport v. Ganim, 241 Conn. 546, 552 (1997). To consider the contents of the later-filed amendment before deciding the motion to dismiss would be in the nature of "proceeding further" with the case. The motion to dismiss must be based solely on the pleadings as of the filing of the motion to dismiss.
Paragraphs five, six and nine of the amended complaint also add allegations seeking reimbursement for benefits paid under Pennsylvania law. Paragraph nine specifically refers to Pennsylvania Workers' Compensation Act § 319.
In the original complaint, Petro Trust alleges that the plaintiff's injuries were "within the scope" of Connecticut's Workers' Compensation Act. Nowhere in the original complaint was it alleged that Petro Trust actually made payments to the plaintiff under Connecticut law. In fact, based on the evidence presented to the court, no workers' compensation benefits were paid to the plaintiff under Connecticut law until April 21, 2006, if at all, well after the defendants had filed their motion to dismiss. Consequently, Petro Trust's argument that it has made payments to the injured plaintiff under Connecticut law is immaterial to determining the outcome of this motion.
Section 31-293 is applicable only to Connecticut employers obliged to pay workers' compensation benefits under Connecticut law. Greene v. Verven, supra, 203 F.Sup. 611. Petro Trust as an out-of-state employer had not paid workers' compensation benefits to the injured plaintiff under Connecticut law. Consequently, § 31-293 is inapplicable to the claims of Petro Trust.
Order
For the foregoing reasons the Defendant's Motion to Dismiss Intervening Plaintiff's Complaint is granted.
So ordered.