Opinion
HHDCV176076691S
09-17-2019
Henry LAVETTE, III v. STANLEY BLACK & DECKER, INC.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the motion of the defendant, Stanley Black & Decker, Inc. (SBD) to dismiss the first count of the revised complaint of the plaintiff, Henry Layette, III, which asserts liability against his former employer for injury caused by its intentional conduct. In the view of SBD, the first count does not set forth facts sufficient to establish entitlement to the intentional tort exception to the bar of personal injury suits by employees against their employers present in the Connecticut Workers’ Compensation Act (act), General Statutes § 31-275 et seq. Because the court agrees with SBD, the motion to strike is granted.
The revised complaint dated February 7, 2019 is the operative complaint. The factual allegations common to all counts of the complaint begin with the plaintiff’s hire by SBD on September 2, 2014 with multiple duties included painting. The plaintiff accumulated an average of 66 hours per week of painting with both brush and spray without proper ventilation. While the plaintiff was originally provided a respirator after commencing his work duties it was taken away from him after one month of work by the Safety Manager, Kim Derin, who was acting on behalf of SBD and as its alter ego, told the plaintiff he was not authorized to use the respirator. In November of 2014, the plaintiff complained to HR Director, Kristen Sabatino, about the strength of smell from the paint vapors. Sabatino, who the plaintiff alleges was "acting on behalf of SBD and as its alter ego at all times alleged [in the complaint]," agreed with his assessment of the paint vapors. Later in that same month the plaintiff expressed his concern about the lack of ventilation and the opinion that the work conditions would not be approved by the U.S. Department of Labor Occupational Safety and Health Administration. He also expressed concerns about symptoms he was developing from the paint exposure including pain, nausea, diarrhea and headaches. The plaintiff’s symptoms worsened over time causing him to complain to Sabatino on multiple occasions about the safety of the paint he was applying. Sabatino, despite knowing it was substantially certain that his exposure to the paint would greatly injure the plaintiff, ignored his complaints.
In July of 2015, other employees working in the same area as the plaintiff began to complain of feeling lightheaded, nauseous and throat irritation. Another employee brought it to the attention of the Safety Manager, Derin, who "was aware her actions and inactions would cause plaintiff severe harm." While Derin immediately instructed the plaintiff to stop painting, a few days later he was told to continue painting. The plaintiff developed symptoms from the inhalation of the paint including nausea, severe headaches, a sore throat, back pain and cramping in his legs. He again complained to Sabatino and Derin about his negative reaction to the painting conditions. No actions were taken to remedy the work conditions and he continued to suffer negative health effects. On March 2, 2016, the plaintiff was hospitalized as a direct result of his excessive exposure to the toxic paint chemicals at work. The plaintiff made a complaint to OSHA about the work conditions and his illness. After investigation, OSHA concluded that SBD was guilty of multiple serious violations of the Occupational Safety and Health Act of 1970.
In the first count, the plaintiff alleges that SBD made a conscious decision to allow the plaintiff to work with hazardous paints without proper ventilation and instructed him to paint in what they knew to be dangerous conditions. It was aware that the plaintiff’s injuries were substantially certain to flow from their actions and the defendant engaged in willful and serious misconduct with the substantial certainty of injury flowing from the defendant’s conduct.
SBD asserts in its motion to strike that the allegations of the first count fail to state a claim on which relief may be granted because it does not set forth facts sufficient to remove the plaintiff’s claim from the operation of General Statutes § 31-284, the exclusive remedy provision of the act. Specifically, SBD claims that the allegations of the first count do not set forth facts sufficient to identify any employee as the alter ego of SBD- as required to impute the actions of the employee to SBD for purposes of the intentional tort exception- because they do not allege facts sufficient to pierce the corporate veil as required by case law. See Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 58, 68 A.3d 1162 (2013). The plaintiff disagrees, reminds the court that a supervisor may be deemed the alter ego of a corporation and asserts that he has set forth "the necessary elements required to properly plead that Ms. Derin and Ms. Sabatino were alter egos of Stanley." The court agrees with SBD.
Section 31-284 provides in relevant part: "(a) An employer ... 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 ... 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 ..."
Because the court agrees with SBD as to the plaintiff’s failure to plead sufficient facts to pierce the corporate veil, it need not address its additional argument that the first count fails because it does not allege sufficiently that SBD either intentionally injured him or that it created a dangerous condition that made the plaintiff’s injuries substantially certain to occur. See Dinino v. Federal Express Corp., 176 Conn.App. 248, 255-56, 169 A.3d 303 (2017).
The alter ego status of Derin and Sabatino was the only basis on which the plaintiff asserted the intentional tort exception to the workers’ compensation exclusivity.
"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." Doe v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019).
"In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), our Supreme Court recognized an exception to the exclusivity provision for intentional torts of an employer ... Subsequently, in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I), and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) (Suarez II), the court expanded the intentional tort exception to the exclusivity provision to include circumstances in which either ... the employer actually intended to injure the plaintiff (actual intent standard) or ... the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (substantial certainty standard)." (Citation omitted.) Binkowski v. Board of Education of City of New Haven, 180 Conn.App. 580, 586, 184 A.3d 279 (2018).
The exception enunciated in Jet v. Dunlap is limited to "torts committed by an employer or a fellow employee identified as the alter ego of the corporation." Jett v. Dunlap, supra, 179 Conn. at 219. The court articulated a distinction between a supervisory employee and one who is properly considered the alter ego of a corporation and made clear the latter designation is determined only upon the application of the "standards governing disregard of the corporate entity ... It is inappropriate where the actor is merely a foreman or supervisor." Id. While, as argued by the plaintiff, a foreman or supervisor may be considered the alter ego of a corporation, the supervisory designation alone is insufficient to establish alter ego status. Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 59, 68 A.3d 1162 (2013).
The Connecticut Supreme Court "has not applied traditional veil piercing lightly but, rather, has pierced the veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice." McKay v. Longman, 332 Conn. 394, 433, 211 A.3d 20 (2019). Two tests are recognized "for disregarding a defendant’s corporate structure; the instrumentality rule and the identity rule. The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff’s legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of ... The identity rule has been stated as follows: If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., supra, 309 Conn. 59, n.7.
In the present case the plaintiff seeks to avail himself of the intentional tort exception by the bald pleading that Derin, Safety Manager, and Sabatino, HR Director, acted on behalf of SBD as its alter ego. Sabatino is alleged to have told the plaintiff that he was the most qualified person for the job while "acting on behalf of SBD and as its alter ego." Revised Complaint, ¶9. While "acting on behalf of SBD and its alter ego" Sabatino is alleged to have agreed about the strength of the smell from the paint vapors. Id. Identically, the plaintiff alleges that "Derin at all times acted on behalf of SBD and was its alter ego." Id., ¶14. When Derin did not respond to the plaintiff’s complaint about his symptoms she was "acting at all times as alleged herein on behalf of SBD and as its alter ego." Id., ¶17.
The allegation that Derin and Sabatino acted on behalf of SBD is of no significance because as a corporate entity it can only act through its employees. See American Networks International, Inc. v. Federowicz, Superior Court, judicial district of Hartford, Docket No. 044001997, 2005 WL 2078543, at *1 (July 13, 2005, Miller, J.) (a corporation obviously acts through its employees) and Szymanska v. Strupinski, Superior Court, judicial district of New Britain, Docket No. 020516194, 2004 WL 113610, at *2 (January 8, 2004, Robinson, J.) (corporations act only though their employees and agents) citing O’Connor v. Wethersfield BOE, Superior Court, judicial district of Hartford, Docket No. 0108083768, 2003 WL 22133180 (August 3, 2003, Booth, J.) 35 Conn.L.Rptr. 326. While certainly a general prerequisite for piercing the corporate veil, acting on behalf of a corporation only minimally advances the plaintiff’s claim to pierce the corporate veil.
The only other basis articulated by the plaintiff upon which to avail himself of the intentional tort exception is the claim that Derin and Sabatino were SBD’s "alter ego." While it is true that in deciding a motion to strike a court must accept the allegations of a complaint as true, "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Moreover, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
In determining whether the allegations of a complaint are sufficient to state a claim for piercing the corporate veil the court looks at its material allegations to see if it satisfies the threshold legal test for piercing the corporate veil. Mountview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., 76 Conn.App. 627, 634, 820 A.2d 1105 (2003) (finding allegations sufficient to make a claim for piercing the corporate veil where defendant was claimed to be sole or majority shareholder of corporation and used corporate funds as her own, failed to keep accurate corporate financial records and disregarded the formalities of the corporate form such that the independence of the corporation as a corporate entity ceased to exist). "Courts have repeatedly denied claims for piercing the corporate veil where the allegations merely set forth legal conclusions that are unsupported by particularized facts." Thomas Nash v. Roland Dumont Agency, Inc. et al., Superior Court, judicial district of New London, Docket No. 185018054, 2019 WL 4344339, at *7 (August 21, 2019, Knox, J.) (compiling cases).
In the present case not only does the first count of the revised complaint not cite any facts to buttress the claim that Darin and Sabatino were the alter ego of SBD it doesn’t even recite the elements of either the instrumentality or identity rules. It therefore fails to state a claim upon which relief may be granted and is ordered stricken.
So ordered.