Opinion
No. CV 04-0832395 S
April 7, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE APPORTIONMENT COMPLAINT (#117)
The court heard argument at short calendar on March 14, 2004 concerning the plaintiff's motion to strike apportionment complaint. For the reasons set forth below, the motion is denied.
In the motion, the plaintiff asserts that he alleges that, at the time that the defendants caused him to suffer his injuries, he was employed by the putative apportionment defendants, Stephen Blevins, dba Blevins Tree Service and Blevins Tree Service, LLC. In his revised complaint, dated August 19, 2004 (# 112), the plaintiff alleges that, on the date of the incident which caused his injuries, June 28, 2003, he "was employed by one Stephen Blevins, dba Blevins Tree Service, as a tree trimmer, and was in the course of his employment by Blevins during the events set forth herein." See revised complaint, ¶ 3.
In his motion, the plaintiff contends, based on General Statute § 52-102b(c), that the "would-be apportionment defendants are not proper persons to be cited-in for apportionment purposes." General Statute § 52-102b(c) provides, "No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h." "The exclusivity of the Workers' Compensation Act, Conn. Gen. Stat. § 31-284(a), is `a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in willful or serious misconduct.' Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994). Nothing in the pleadings suggests that the `narrow exception' identified by Suarez applies to this case." Allen v. Hutchinson, Superior Court, judicial district of New Haven, Docket No. 404673 (April 10, 2001, Blue, J.) (29 Conn. L. Rptr. 317).
While, as noted, in his revised complaint, the plaintiff identifies Stephen Blevins, dba Blevins Tree Service, as his employer, it is not that pleading which is the subject of the motion to strike. Rather, it is the apportionment complaint which is the subject of the plaintiff's challenge. There, the defendants/apportionment plaintiffs allege that "[t]he plaintiff alleges that on or about June 28, 2003, he was performing tree trimming services for Stephen Blevins dba Blevins Tree Service at 489 Wolcott Hill Road in Wethersfield, Connecticut, in an aerial lift, which collapsed causing him to fall to the ground and suffer personal injuries." See apportionment complaint, dated April 7, 2004 (# 103), ¶ 2. In paragraph 5 of the apportionment complaint, it is alleged that, at the time of the incident, "the plaintiff was performing tree trimming work for the apportionment defendants and using the apportionment defendants' truck and aerial lift."
The defendants/apportionment plaintiffs contend that Stephen Blevins and/or Stephen Blevins dba Blevins Tree Service, and/or Blevins Tree Service, LLC are or may be liable for a proportionate share of the plaintiff's damages. See apportionment complaint, ¶ 7. There is no reference in the apportionment complaint to the plaintiff being employed by Stephen Blevins dba Blevins Tree Service.
"`In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . .' (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997)." Saucier v. Wolcott, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 03-0177767 S (December 5, 2003, Matasavage, J.) ( 36 Conn. L. Rptr. 110) (looking to facts alleged in apportionment complaint on motion to strike). The court must "construe the [challenged pleading] in the manner most favorable to sustaining its legal sufficiency." Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
The apportionment complaint does not contain an allegation as to by whom the plaintiff was employed at the time of the incident. Thus, the pleading at issue differs from that which was before the court in Allen v. Hutchinson, supra. There, "[t]he First Count of the apportionment complaint allege[d] that [the plaintiff] was an employee of DeFelice acting in the course of his employment." Id. In the absence of such an allegation in the challenged pleading here, the facts as to the plaintiff's employment status at the time of the incident may not be considered by the court in adjudicating the motion to strike the apportionment complaint.
Accordingly, based on the contents of the apportionment complaint, the court may not conclude, as a matter of law, pursuant to General Statute § 31-284(a), that the apportionment defendants are immune. Under the circumstances, the court need not consider the other arguments raised by the defendants/apportionment plaintiffs in opposition to the motion to strike.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike the apportionment complaint is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT