Opinion
No. CV02 039 88 87
August 9, 2004
MEMORANDUM OF DECISION RE DEFENDANTS' OBJECTION TO INTERVENING COMPLAINT (#108)
The defendants, Anthony Flood and Wayne V. Lilly, filed an objection to the intervening complaint filed by Stevens Ford-Lincoln Mercury (Stevens), the plaintiff's employer at the time of the accident that is the subject of the underlying action. The defendants argue that under General Statutes § 52-102, an intervening party must receive permission from the court in order to file an intervening complaint and because Stevens filed an appearance and an intervening complaint without moving to intervene, the defendants argue that this court lacks jurisdiction over Stevens. The defendants further argue that Stevens did not file its complaint within the thirty-day time period prescribed by General Statutes § 31-293, and therefore, its right of action has abated. Finally, the defendants assert that the statute of limitations on claims arising from the accident ran more than a year before the intervening complaint was filed. Based on these alleged failings, the defendants seek to have the intervening complaint dismissed.
General Statutes § 52-102 deals with intervention of parties generally, whereas General Statutes § 31-293 deals specifically with " Liability of third persons to employer and employee," the type of situation at issue in this case. "As a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter." Internal quotation marks omitted.) Board of Education v. Naugatuck, 268 Conn. 295, 304, 843 A.2d 603 (2004). Noting this rule, the Appellate Court has determined that "§ 31-293(a) rather CT Page 11232-gx than § 52-102 controls . . ." in a case such as this one in which an employer seeks to intervene in an action filed by its employee against a third party, in order to preserve its right to reimbursement of workers' compensation payments paid or owed to the employee. Hallenbeck v. St. Mark the Evangelist Corp., 29 Conn.App. 618, 624, 616 A.2d 1170 (1992). The language of "§ 31-293(a) does not expressly predicate an employer's right to intervene upon the making of a motion," leading the Appellate Court to conclude that the intervening plaintiff need not move to intervene in order to successfully effectuate intervention under the statute. Id., 624, 625. The court noted that a motion to intervene "serves as notice that intervention is being asserted," and determined that "[t]he same notice [was] provided by the `Intervening Complaint' and `Intervention'" submitted by the intervening plaintiff in that case. Id., 627. The same notice is also provided by the appearance and intervening complaint filed by Stevens in this case. Therefore the defendant's objection to the intervening complaint cannot be sustained on the basis of Stevens' failure to file a motion to intervene.
Section 31-293(a) provides that an employee who is eligible to receive workers' compensation payments may claim such payments and also may file an action against a third party who is liable for the employee's injuries. An employee bringing a suit against a third party pursuant to this statute is obligated to "immediately notify the [employer], in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the [employer] may join as [party] plaintiff in the action within thirty days after such notification," or its cause of action will abate. General Statutes § 31-293(a). In this case, the plaintiff filed his complaint on November 16, 2002, and Stevens did not file its intervening complaint until June 9, 2004. Thus, the defendants assert that Stevens exceeded the thirty-day time limit for intervening under the statute, and the action should be dismissed. Stevens, on the other hand, asserts that it never received the notice required by the statute, and, therefore, its ability to intervene as a matter or CT Page 11232-gy right has not abated. "[A]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of the time which this statute prescribes, because, until notice is given, the time does not begin to run." (Internal quotation marks omitted.) Rana v. Ritacco, 236 Conn. 330, 336, 672 A.2d 946 (1996). The Supreme Court has determined that "in order for the abatement provision of § 31-293 to be invoked against a party, the notice given pursuant to that statute must have comported with both the statutory requirements and the due process clause. In compliance with the statute, the notice must contain (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable . . . and in compliance with the due process clause, the notice must also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." (Citation omitted; internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 444-45, 698 A.2d 867 (1997). In its response to the defendants' objection to the intervening complaint, Stevens claims to have never received the requisite notice from the plaintiff. Neither the plaintiff nor the defendants have disputed Stevens' assertion. Because the plaintiff never gave Stevens the appropriate notice, the abatement provision contained within § 31-293 cannot be invoked against Stevens.
The defendants state that this action was filed on November 14, 2002. While the complaint was dated on that day, this action was not actually commenced until November 16, 2002.
The defendants assert that the intervening complaint was filed on June 8, 2004, the day on which it was dated. The intervening complaint was actually filed on June 9, 2004.
The defendants also argue that Stevens should not be permitted to intervene, for they claim that the statute of limitations for this action expired on November 17, 2002, and the intervening complaint was not filed until April 9, 2004. As the Supreme Court determined in Lakewood Metal Products, Inc. v. Capital Machine Switch Co., 154 Conn. 708, 226 A.2d 392 (1967), a statute of limitations defense is "prematurely raised," in an action such as this one, and need not be addressed on the merits. Id., 710. In Lakewood Metal Products, Inc., the court stated that in determining whether an intervening plaintiff should be permitted to intervene, "[t]he only statute we need be concerned with is § CT Page 11232-hz 31-293 of the General Statutes." Id. The intervening plaintiff in that case had never received notice of the action by the plaintiff, and, therefore, the thirty-day time period for intervention prescribed by the statute never started to run, and the intervening plaintiff still could intervene as a matter of right. Id. In holding that the intervening plaintiff could intervene, the court stated that this merely allows the intervening plaintiff to file his complaint. Id. "Any pleas or motions which the parties deem appropriate can then be made. Also any defense which the defendants may wish to raise concerning statutes of limitation can then be pleaded as a special defense." Id., 710-11.
The defendants' objection to the intervening complaint is overruled, for Stevens is entitled to intervene under § 31-293. The defendants are still free to argue that Stevens' action is time barred, but must do so by pleading the statute of limitations as a special defense, pursuant to Practice Book § 10-50.
So ordered.