Opinion
No. FSTCV09-5012022S
March 22, 2011
Memorandum of Decision on Motion for Summary Judgment (No. 200)
ISSUE PRESENTED
The issue presented is whether or not the court should grant the counterclaim/cross claim defendant, Gerety Painting and Contracting Corporation's motion for summary judgment as to the counterclaim brought by the defendant Classic Roofing, Inc. and the cross claim brought by Carz Construction, LLC. Gerety contends that these indemnification and negligence claims are barred by the exclusivity provision of the Connecticut Workers' Compensation Act, General Statutes § 31-284(a).
FACTUAL BACKGROUND
Presently before the court is the intervening plaintiff-counterclaim/cross claim defendant, Gerety Painting and Contracting Corporation, LLC's (Gerety) motion for summary judgment, directed towards the counterclaim brought by defendant Classic Roofing Company, Inc. (Classic Roofing) and the cross claim brought by apportionment defendant Carz Construction, LLC (Carz). In order to resolve Gerety's motion for summary judgment, the following background information is necessary. On June 12, 2009, the plaintiffs, Victor Monge and Manuel G. Ordonez, painters employed by Gerety, commenced this action by service of process on the defendants Classic Roofing, and homeowners Anastase Couyoumjan and Fay Dawes Couyoumjan (collectively, the Couyoumjans). In their six-count amended complaint dated February 19, 2010 sounding in negligence, the plaintiffs allege that on June 13, 2007, they were employees of Gerety and were painting the second-floor windows of the Couyoumjan's home located in Greenwich. While performing these painting services, it became apparent to the plaintiffs that they would have to utilize a wooden scaffold in order to reach the area that needed to be painted.
Accordingly, it is alleged, the plaintiffs communicated with an "employee agent and/or representative" of both Classic Roofing and Carz, who were also present at the property doing roofing work, as to how the scaffolding should be safely affixed to the structure on which the plaintiffs were to be performing the painting. These employees of Classic Roofing and Carz allegedly proceeded to set up the scaffolding without any direction from the plaintiffs. The plaintiffs claim they were assured that the scaffolding had been attached in an appropriate, safe and reasonable manner. Shortly thereafter, the scaffolding came loose from the house and the plaintiffs fell approximately twelve feet to the ground and experienced serious and permanent physical injuries. Specifically, the plaintiffs allege that Monge suffered, inter alia: (1) traumatic brain injury causing near death and requiring life support and hospitalization; (2) a concussion and coma lasting three weeks and requiring a one-month hospital stay and (3) severe and impaired cognitive performance. The plaintiffs also allege that Ordonez suffered physical injuries including: (1) fractured ribs; (2) fracture of the left pelvis; (3) headaches; (4) lower back sprain/strain; (5) loss of enjoyment of life and (6) mental stress and anguish.
On July 17, 2009, Gerety filed a motion to intervene in this case in order to recoup workers' compensation benefits that it paid to the plaintiffs. This motion was granted by the court, Adams, J., on October 13, 2009. On its motion, Gerety stated that it was intervening in the case pursuant to General Statutes § 31-293 and New York Workers' Compensation Law § 29. Following Gerety's entry into the case, on November 3, 2009, Classic Roofing filed an answer and special defense to Gerety's intervening complaint, as well as a counterclaim against Gerety. Classic Roofing's counterclaim alleges that it is entitled to common-law "active/passive indemnity from Gerety because on the date of the subject incident: (1) Gerety was in complete control of the means and methods used during the work performed on the Couyoumjans' home to the exclusion of Classic Roofing; (2) Gerety was responsible for performing the work on the Couyoumjans' house in a safe manner; (3) Monge's injuries were caused by the negligence of Gerety's employees rather than Classic Roofing's; (4) Gerety was negligent and its negligence, rather than Classic Roofing's, was the direct and proximate cause of the injuries suffered by Monge; (5) Gerety was in control of the situation giving rise to the subject incident to the exclusion of Classic Roofing; and (6) Classic Roofing did not know of, and had no reason to anticipate, the negligence of Gerety's employees. Paragraph four of the counterclaim alleges that the injuries suffered by Monge qualify as "grave injuries" under New York Workers' Compensation Law § 11. And the counterclaim seeks indemnification "to the extent the plaintiff Victor Monge recovers damages against Classic Roofing." (¶ 13.) Similarly, on March 25, 2010, Carz also filed a cross claim seeking indemnification from Gerety. CT Page 7525 The allegations of Carz's cross claim are substantially similar to those of Classic Roofing's counterclaim in that Carz alleges that the sole cause of Monge's injuries was the negligence of Gerety's employees. Carz had become a part of this case on December 3, 2009, when the Couyoumjans filed an apportionment complaint against it.
General Statutes § 31-293(a) provides in relevant part: "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 . . . any employer . . . 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."
New York Workers' Compensation Law § 29(1) provides in relevant part: "If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee . . . need not elect whether to take compensation and medical benefits under this chapter or to pursue his remedy against such other but may take such compensation and medical benefits and at any time either prior thereto or within six months after the awarding of compensation . . . In such case . . . the person, association, corporation or insurance carrier liable for the payment of such compensation, as the case may be, shall have a lien on the proceeds of any recovery from such other . . . to the extent of the total amount of compensation awarded under or provided or estimated by this chapter for such case and the expenses for medical treatment paid or to be paid by it and to such extent such recovery shall be deemed for the benefit of such fund, person, association, corporation or carrier."
This motion, then, has nothing whatsoever to do with the claims of the other injured plaintiff Manuel G. Ordonez.
The motion is not actually a "cross claim" which is a "claim against any codefendant." Practice Book § 10-10. It is actually a counterclaim by a defendant seeking indemnification against an intervening plaintiff. But since it is titled as a cross claim and described as such in all the briefing, I will continue to call it a cross claim. Actually, the cross claim at which the Gerety motion for summary judgment is directed is not the cross claim filed by defendant Carz Construction, but an earlier "cross claim" brought by the homeowner defendants Anatase and Fay Dawes Couyoumjans which is now moot because the plaintiff withdrew the complaint against them by notice dated October 25, 2010. In its brief in support of this motion for summary judgment, however, Gerety states that its analysis of the Couyoumjans' cross claim is equally applicable to the Carz cross claim and asks the court to enter summary judgment as to both. And Carz has filed a memorandum of law in opposition to this motion. The Court will therefore treat the motion for summary judgment as directed against the Classic Roofing counterclaim (No. 135) and the Carz "cross claim" (No. 175).
This apportionment complaint alleges that Classic Roofing had a contract with Carz wherein Carz was to act as a subcontractor to complete roofing work at the Couyoumjans' home. The most recent iteration of the plaintiffs' complaint also alleges claims against Carz.
On July 2, 2010, Gerety filed this motion for summary judgment as to Classic Roofing's counterclaim, [a]so applicable to Carz's cross claim] with a memorandum of law in support of its motion. Gerety moves for judgment in its favor as a matter of law on the ground that Classic Roofing and Carz's claims are barred under the exclusivity provision of the Connecticut Workers' Compensation Act, General Statutes § 31-284(a). Attached to Gerety's motion are:(1) an unauthenticated copy of a contract between Gerety and Fay Dawes Couyoumjan; (2) the notarized affidavit of James Chillington, who is the president of Classic Roofing and (3) the notarized affidavit of Roman Serafin, who is the owner of Carz. On July 14, 2010, Classic Roofing filed a memorandum of law in opposition to Gerety's motion, which attaches: (1) a copy of answered interrogatories and requests for production propounded on Monge by Classic Roofing dated September 28, 2009; (2) Chillington's notarized affidavit; (3) a copy of answers to interrogatories and requests for production propounded on Gerety by Classic Roofing dated May 3, 2010 and (4) a copy of interrogatories and requests for production propounded on Ordonez by Classic Roofing dated September 28, 2009. Carz also filed a memorandum of law in opposition to Gerety's motion on July 20, 2010. Attached to Carz's memorandum of law in opposition are the same three responses to the sets of interrogatories and requests for production as were attached to Classic Roofing's memorandum of law in opposition. Additionally, Carz also attaches a one-page uncertified excerpt from Chillington's deposition transcript. The parties appeared before the court at short calendar on November 22, 2010, and argued the issues raised in this motion.
General Statutes § 31-248(a) provides in relevant part: "An 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, but an employer shall secure compensation for his employees as provided under this chapter . . . 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 . . .
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In its memorandum Gerety argues that the claims brought by Classic Roofing and Carz are barred under the exclusivity provision of Connecticut's Workers' Compensation Act. "The [Connecticut] 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 . . . The exclusivity provision in § 31-284(a) manifests a legislative policy decision that a limitation on remedies is an appropriate trade-off for the benefits provided by workers' compensation." (Internal quotation marks omitted.) Stearns Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 10-11, 955 A.2d 538 (2008). "Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount . . . In return, the employee is compensated for his or her losses without having to prove liability . . . The intention of the framers of the [Workers' Compensation Act,] General Statutes § 31-275 et seq. (Act] was to establish a speedy, effective and inexpensive method for determining claims for compensation." (Emphasis in original; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 449, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003). Despite this general rule, the exclusivity provision of the Connecticut Workers' Compensation Act does not always bar a third party from seeking indemnification from an employer. For instance, "if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed." (Internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). Gerety argues that this exception does not apply in the present case because there is no express or implied agreement for Gerety to indemnify Classic Roofing or Carz. All of the parties agree that there was no contractual indemnification agreement between Gerety and Classic Roofing or Carz, and, as a result, the Ferryman exception to the exclusivity rule does not apply here.
Classic Roofing and Carz both offer similar arguments in opposition to Gerety's position that their counter and cross claims are barred under Connecticut workers' compensation law. While Classic Roofing and Carz acknowledge that the exclusivity provision found in § 31-284(a) would preclude their claims if the court were to apply Connecticut law, Classic Roofing and Carz contend that New York law governs the present matter. Under New York workers' compensation law, "grave injuries" are exempted from that state's exclusivity provision. The applicable statute provides in relevant part: "An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a `grave injury' which shall mean only one or more of the following . . . an acquired injury to the brain caused by an external physical force resulting in permanent total disability." New York Workers' Compensation Law § 11. The New York Court of Appeals has determined "that a brain injury results in `permanent total disability' under [New York Workers' Compensation Law § 11] when the evidence establishes that the injured worker is no longer employable in any capacity." Rubeis v. Aqua Club, Inc., 3 N.Y.3d 408, 413, 821 N.E.2d 530, 788 N.Y.S.2d 292 (2004). "Whether a worker has sustained a grave injury within the meaning of the statute is ordinarily a question of fact which should not be resolved on a motion for summary judgment." M. Canavan, New York Jurisprudence (2d Ed. 2005) v. 109 § 114, p. 290, citing Cogan v. Madeira Associates, 1 App.Div.3d 1066, 766 N.Y.S.2d 475 (2003); Balaskonis v. HRH Construction Corp., 1 App.Div.3d 120, 767 N.Y.S.2d 9 (2003).
In the operative complaint, the plaintiffs allege that Monge suffered "[t]raumatic brain injury; causing near death and requiring life support and hospitalization" as a result on his fall from the scaffolding at the Couyoumjans' residence. Furthermore, in paragraph thirteen, the plaintiffs allege that "Monge's ability to earn a living has been permanently impaired." Similar attestations are made in Monge's sworn answers to Classic Roofing's interrogatories. Monge's alleged severe brain injuries are referenced in both Classic Roofing's November 3, 2009 answer and counterclaim and Carz's March 25, 2010 cross claim. Consequently, it can be seen that the plaintiffs at least allege that Monge suffered the type of injury that could qualify as a grave injury under New York Workers' Compensation Law § 11. None of the evidence offered in support of or in opposition to Gerety's motion for summary judgment speaks to the issue of whether Monge actually suffered a grave injury. As such, the allegations regarding a grave injury allegedly suffered by Monge create a genuine issue of material fact that would preclude summary judgment so long as the court were to apply New York workers' compensation law to the present case. Accordingly, the determinative issue in this matter is whether the court should apply Connecticut or New York law.
The Connecticut Supreme Court recently examined choice of law principles in the context of a dispute over whether New York or Connecticut workers' compensation law applied in a case where a New York resident employed by a New York corporation was injured in Connecticut during the course of his employment. As stated by our Supreme Court, "when . . . an injured employee brings a tort action that ostensibly falls within an exception to the exclusivity provisions of our Workers' Compensation Act . . . the choice of law question is not which state among one or more other states has a sufficient interest in having its statutes invoked for the benefit of the employee. The issue, rather, is which state's law, to the exclusion of the law of all other potentially interested states, is the governing or controlling law." Jaiguay v. Vasquez, 287 Conn. 323, 347, 948 A.2d 955 (2008). Therefore, in such cases, Connecticut courts utilize the choice of law principles applicable to tort cases. Id. In Jaiguay, the Supreme Court determined that courts should analyze this issue under the most significant relationship test as articulated in the Restatement (Second) of Conflict of Laws, §§ 6 and 145. This section of the Restatement provides that "`[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.' . . . Subsection (2) of § 6 of the Restatement (Second) of Conflict of Laws, in turn, provides: `When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.'" (Citation omitted; internal quotation marks omitted.) Id., 351.
"For assistance in [the] evaluation of the policy choices set out in Restatement §§ 145(1) and 6(2) . . . [Connecticut courts] turn . . . to § 145(2) . . . which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases . . . Subsection (2) of § 145 . . . provides: `Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.'" (Internal quotation marks omitted.) Jaiguay v. Vasquez, supra, 287 Conn. 352.
In the present case, the evidence attached to Classic Roofing and Carz's respective memoranda of law reveals the following facts, which are not disputed by any evidence offered by Gerety. According to their answers to interrogatories, both of the plaintiffs are residents of New York state. The plaintiffs' employer, Gerety, is a corporation located in Katonah, New York. Nevertheless, the subject accident occurred at the Couyoumjans' home in Greenwich, Connecticut, and the operative complaint alleges that Classic Roofing and Carz are a Connecticut corporation and limited liability company, respectively.
Both of the plaintiffs attest that they live in Ossining, New York.
Accordingly, when applying the Restatement factors to this matter, it can be seen that (a) and (b) indicate that Connecticut law should apply because the accident and conduct causing the accident occurred in this state. In contrast, (c) and (d) militate towards applying New York law because both of the plaintiffs are New York residents and the relationship between Gerety and the plaintiffs originated from the fact that Gerety employed the plaintiffs in New York. "As O'Connor [v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986] informs us, [however], it is the significance, and not the number, of § 145(2) contacts that determines the outcome of the choice of law inquiry under the Restatement [Second] approach. As the concluding sentence of § 145(2) provides, `[t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.'" (Internal quotation marks omitted.) Jaiguay v. Vasquez, supra, 287 Conn. 353. In Jaiguay, the Supreme Court determined that the (c) and (d) factors were more important in cases of this type because: "The most significant factors are that (1) Primo's Landscaping employed the decedent in New York, (2) the entirety of the employment relationship was in New York, (3) the decedent, Vasquez and Percy Montes all resided in New York, (4) the pickup truck was registered in New York, and (5) Primo's Landscaping was a New York corporation." Id. Like the parties in Jaiguay, the plaintiffs in the present matter both reside in New York and they were employed by a New York company, which is where their employment relationship with Gerety was centered.
"In determining which state's law should apply under § 6(2), [the court] must [also] review, inter alia, the respective policies and interests of New York and Connecticut in the controversy." Jaiguay v. Vasquez, supra, 287 Conn. 353. The court concludes that in the present case New York has the greater interest in applying its workers' compensation law because New York has a grave injury exception to its exclusivity provision. When drafting its workers' compensation statute, the New York legislature determined that its exclusivity provision should not bar a party from seeking indemnity from a New York employer in situations where the employee has suffered a "grave injury." The present case has been brought by two New York plaintiff's who were employed by a New York corporation. In such an instance, the policy of the state of New York should be controlling. Indeed, as stated by our Supreme Court in Jaiguay, "because the parties' employment relationship is centered in New York, New York has a clear interest in ensuring that its contrary public policy is honored." Id., 354. "Finally, subdivision (d) of § 6(2) requires [the court] to examine the expectations of the parties as to what law governs their actions . . . Because the [the plaintiffs] all resided in New York, because New York was the situs of the employment relationship and because the parties' only nexus to Connecticut was the fact that the accident occurred in Connecticut, the parties reasonably would have expected to be able to invoke the rights and protections available to them under the laws of New York." (Citation omitted.) Id., 354-55. For all of these reasons, the court conludes that New York law should be applied to the present matter. As this action would not be precluded under the grave injury exception to New York workers' compensation law, Classic Roofing and Carz's counter and cross claims are not barred.
It is true that this case is somewhat distinguishable from Jaiguay in that in the present matter the named defendants are either Connecticut residents or Connecticut businesses. Nevertheless, New York still has the greater interest in having its law applied in the present matter because both of the plaintiffs are from New York and they were employed by a New York company when they allegedly suffered their injuries. Furthermore, only New York law allows for the grave injury exception to the exclusivity provision, which is at issue in this case because of the extent of Monge's injuries. It should also be noted that Gerety has provided no analysis on this choice of law issue in the memorandum of law in support of its summary judgment motion. As it is Gerety's burden to prove that it is entitled to judgment as a matter of law, and Gerety has not analyzed the determinative issue, this is a further reason to deny Gerety's summary judgment motion.
Finally, Gerety contends that summary judgment should be granted in its favor because any implied indemnification agreement between the parties is against public policy pursuant to General Statutes § 52-572k. Specifically, Gerety argues that this statute prohibits it from assuming all liability for the plaintiffs' injuries without limitation as to whether Gerety actually caused the subject injuries. Gerety contends that the allegations of Classic Roofing's counterclaim and Carz's cross claim necessarily establish such a relationship. In response, Classic Roofing and Carz both argue that § 52-572k does not apply to this case because their counter and cross claims sound in common law, as opposed to contractual, indemnification.
Notably, this argument is not listed as a ground on Gerety's motion for summary judgment. Nevertheless, it is briefed adequately in all of the respective parties' memoranda of law.
Section 52-572k(a) provides in relevant part: "Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void . . ." By its plain language, § 52-572k(a) only applies to covenants, promises or agreements in a construction contract. "The purpose of the statute is to nullify any provision in construction contracts which grants immunity to either party for acts of negligence . . . Thus, the statute seeks to declare void and against policy any agreement entered into in connection with a construction contract which relieves a person from liability . . . resulting from his negligence." (Citation omitted; emphasis added; internal quotation marks omitted.) Costin v. Bhandari Constructors Consultants, Inc., 285 F.Sup.2d 165, 169 (D.Conn. 2003). In their counter and cross claims, Classic Roofing and Carz do not allege a contract between themselves and Gerety as the basis for their indemnification claims. Rather, Classic Roofing and Carz are bringing common-law indemnity causes of action. As a result § 52-572k is inapplicable to this action and the court should reject this argument offered in favor of Gerety's motion for summary judgment.
CONCLUSION
For all of the reasons stated above, Gerety's motion for summary judgment as to Classic Roofing's counterclaim and Carz's cross claim is denied.