Opinion
No. X07 CV02 0078225S
April 28, 2004
MEMORANDUM OF DECISION
The defendant, Black Veatch Construction, Inc. ("BVCI") has moved for summary judgment on the claims of the plaintiffs who sustained injuries as a result of an accident at the construction site of the Milford Power Project. Black Veatch asserts that it is entitled to judgment as a matter of law because the plaintiffs' claims are barred by the exclusivity provision of the Connecticut Workers' Compensation Act.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrates that no genuine dispute of material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The following facts are undisputed for purposes of this motion. In 1999, the defendants, BVCI and Alstom Power, Inc., entered into a consortium agreement contract to design, engineer, and construct a power plant in Milford, Connecticut. Part of the project involved the erection of two structures known as Heat Recovery Steam Generators ("HRSG") Units One and Two.
BVCI's Edward Dunn was the Project's Mechanical Superintendent. Dunn reported directly to William Marquardt, the Project Superintendent. Marquardt reported to the Project's Construction Manager, Gene Kiholm. The Construction Manager, in turn, reported to the Site Project Manager, Brent Freeman. Freeman, in turn, reported to the Project Manager, John Hughes. BVCI also had both a Site Safety Manager and a Safety Specialist assigned to this project. Both Marquardt and Dunn were hired by BVCI out of the union hall for Local 777 solely for this project.
On Monday, January 31, 2000, Marquardt and Dunn directed fellow BVCI employee and General Foreman, Anthony Martino, to lead the removal of the temporary cross-bracing from the east side of the HRSG. Marquardt was the highest-ranking BVCI employee involved in the decision to remove the temporary bracing. He did not consult with any of his superiors on the project concerning their removal. Neither Construction Manager Kiholm nor Site Project Manager Freeman directed the removal of the bracing on the day of the accident. Project Manager Hughes did not play any role in the removal of the bracing, and he was not consulted regarding the removal.
On Wednesday, February 2, 2000, two days after the temporary bracing was removed from the east side of the HRSG, Martino was directed to remove the bracing from the west side. While the braces were being removed from the west side, the HRSG collapsed, resulting in the deaths of Wayne Most and Kevin Winslow, and injuries to Robert Fitch, Jr. and George Scrivener, all BVCI employees working on the Milford Project.
The exclusivity provision of the Workers' Compensation Act, § 31-284(a), provides, in relevant part, as follows: "An employer who complies with the requirements 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 . . ." In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), the Connecticut Supreme Court recognized a narrow exception to the exclusivity provision of the Act. In Jett, supra, the Court held that the employee's action in tort against his employer was not barred by the Act because his injuries were intentionally inflicted by another employee identified as the "alter ego" of the employer. Id., 219. "If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor." Id. The Court affirmed its ruling by stating, "A corporate employer may be liable in common law tort for an employee's injury if the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault." Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 275 (1997) (quoting Jett, 219). Merely because the supervisory actor has apparent authority will not suffice. Suarez, 242 Conn. at 275. "A key factor in making a determination of whether the corporate shield should be disregarded is the degree of control or influence exercised over the corporation by the individual sought to be held liable." Christian Bros., Inc. v. South Windsor Arena, Inc., 7 Conn. App. 648, 651 (1986). "There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is a business conduit for its principal." Hersey v. Lonrho, Inc., 73 Conn. App. 78, 86 (2002).
Both Marquardt and Dunn were union employees hired by BVCI solely for the Milford Project. Neither had worked for BVCI on any other project. Marquardt's role was to supervise the erection of the HRSG and other aspects of the Project as set by the Erection Sequence Manual, drawings and other guidelines. No evidence was submitted as to whether he or Dunn had the authority to hire or fire workers for BVCI. Neither Marquardt nor Dunn has ever been a principal or officer of BVCI. Nor have they ever been shareholders or served on the board of directors of BVCI. Despite their supervisory roles, these men lacked any authority to make policy decisions on behalf of BVCI, and they cannot be deemed the alter ego of BVCI.
Accordingly, BVCI is entitled to judgment as a matter of law. The motion for summary judgment is granted.
Sferrazza, J.