Opinion
No. CV04 400 26 51 S
January 24, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114
On August 19, 2005 the plaintiff, Ronald Spellman, filed a four-count revised complaint against the defendant, Southern New England Telephone Information Services (SNET). Count one entitled "Intentional Conduct" alleges that on September 17, 1996 the plaintiff sustained an injury compensable under the Workers' Compensation Act (Act), General Statutes § 31-275 et seq. The plaintiff further alleges that the injury was the subject of a voluntary agreement executed by an authorized representative of SNET. The first count also claims that the plaintiff and SNET were both parties to a lawsuit against a third person whose negligence was claimed to be the cause of the plaintiff's injury. As part of the settlement of the lawsuit, count one alleges that SNET agreed that, in consideration of its receiving the sum of $66,666.66 from the lawsuit, it would pay the plaintiff a specific indemnity of $584 for 56.1 weeks. On or about April 1, 2003, the plaintiff claims that SNET intentionally discontinued payment of the temporary total disability benefits in violation of the Act. Count two incorporates the facts of count one and is entitled "Reckless/Intentional Conduct" and alleges further that SNET has unduly delayed and withheld payment of lost wages and medical benefits and has failed to satisfy its duties under the act. Count three is entitled "CUTPA" and alleges that SNET's conduct in discontinuing the indemnity payments constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The fourth count alleges wrongful discharge pursuant to General Statutes § 31-290a.
On September 2, 2005 SNET filed a motion to strike counts one though three on the grounds that the exclusivity provision of General Statutes § 31-284(a) bars counts one and two, and that count three must be stricken because CUTPA does not extend to the employer-employee relationship under Connecticut law. As required by Practice Book § 10-42(a), SNET has filed a memorandum in support of its motion to strike. The plaintiff filed a memorandum in opposition on September 27, 2005 and SNET filed a reply memorandum on October 7, 2005.
General Statutes § 31-284(a) provides in relevant part: "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, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
Practice Book § 10-42(a) provides: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies."
"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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). A complaint may be vulnerable to a motion to strike if challenged on the ground that the exclusive remedy is the Workers' Compensation Act; see, e.g., Yuille v. Bridgeport, 89 Conn.App. 705, 707, 874 A.2d 844 (2005); or on the ground that CUTPA does not apply. See, e.g., Fortunato v. Office of Stephen M. Silston, D.D.S., 48 Conn.Sup. 636, 641, 856 A.2d 530 (2004).
In support of its motion to strike, SNET argues that counts one and two of the plaintiff's complaint reflect consequential damages arising out of the alleged delay to pay workers' compensation benefits. Such claims, they argue, are barred from the Superior Court and are required to be addressed by the workers' compensation commission under the Act. Regarding the third count, SNET argues that CUTPA only applies to wrongful acts committed in the conduct of trade or commerce and does not include acts committed in an employer-employee relationship. In response the plaintiff argues that the decision in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005) is not controlling regarding counts one and two because that case involved bad faith processing on the part of an insurer, not an employer. In the alternative the plaintiff argues that the actions of SNET meet the egregious conduct exception indicated in DeOliveira. Further, intentional torts are not covered by the exclusivity provision of the Act and are permitted to be brought before the Superior Court. On count three the plaintiff argues that CUTPA applies because he is alleging a conspiracy outside the employer-employee relationship.
At issue in counts one and two is whether the plaintiff's alleged injuries qualify as a cause of action that falls outside of the scope of the Act. The "exception . . . to the exclusivity provision of the workers' compensation statute . . . [arises] when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct." (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). "[T]he mere fact [however] that an injury is not compensable under the act does not mean necessarily that an action for damages may be brought and that the exclusivity provision does not bar such an action." DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 498. For example, the "legislature . . . has conferred jurisdiction upon the commission to adjudicate claims related to untimely payment of benefits and has developed a scheme under which remedies may be provided." Id., 496-97.
The plaintiff argues that the alleged actions of SNET constitute intentional and reckless conduct, therefore, the plaintiff argues that his lawsuit qualifies as an exception to the exclusivity provision of the Act. SNET argues that a delay or stoppage of benefits is related to the original injury, and therefore is covered under the Act. The court agrees with SNET.
The plaintiff alleges that he filed a workers' compensation claim with the workers' compensation commission and that the injury was the subject of a voluntary agreement executed by the plaintiff and SNET. The two parties were co-plaintiffs in a negligence action against a third party for the injuries suffered by the plaintiff. The plaintiff claims that as part of the settlement agreement SNET agreed to pay the plaintiff a specific indemnity for 56.1 weeks. SNET has allegedly stopped payment before the pay period has ended.
"[I]njuries arising out of and in the course of the workers' compensation claims process fall within the scope of the exclusive remedy provisions because this process is tethered to a compensable injury. Indeed, every employee who suffers a workplace injury must go through the claims process in order to recover compensation." (Internal quotation marks omitted.) DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 503-4. Further, "construing the act to permit a tort action for an injury for which a remedial process is provided under the act would invite the indefinite prolonging of litigation and risk double recoveries and inconsistent findings of fact, a result which the legislature, in enacting a system of compensation in place of common law remedies, certainly wished to avoid." (Internal quotation marks omitted.) Id., 500.
The plaintiff has argued that DeOliveira is not controlling because it is factually distinguishable in so far as the court discusses bad faith processing of claims, not intentional conduct on the part of the insurer. The plaintiff's argument is misplaced as the DeOliveira court, while discussing intentional conduct, specifically held that the statutory language of §§ 31-288(b) and 31-300 was "broad enough to encompass the bad faith processing of a workers' compensation claim." Id., 506. Further, "the presence of penalties in the act reflects the legislature's cognizance of wrongful, not merely negligent, conduct." Id., 507. The court also finds the plaintiff's argument regarding the egregious conduct exception discussed in DeOliveira unpersuasive as that exception only applied to conduct " separate and apart from nonpayment." (Emphasis added.) Id.
The Supreme Court cites to the cases of Unruh v. Truck Ins. Exchange, 7 Cal.3d 616, 498 P.2d 1063, 102 Cal. Rptr. 815 (1972) and Young v. Hartford Accident Indemnity Co., 303 Md. 182, 492 A.2d 1270 (1985) as examples of egregious conduct outside of nonpayment that would fall outside the exclusivity provision of the Act. In Unruh the defendant insurance company, though its agent, fraudulently and deceitfully enticed the plaintiff to go to Disneyland, and secretly taped the plaintiff performing physical exercises. In Young the defendant insurance company allegedly required the plaintiff to see a psychiatrist with the intent to harass the plaintiff into abandoning her claim, or into committing suicide. Upon seeing the psychiatrist, the plaintiff attempted suicide.
The plaintiff has argued further that DeOliveira does not apply to the conduct of an employer. Recently, however, our Appellate Court in Yuille v. Bridgeport, supra, 89 Conn.App. 705, found DeOliveira indistinguishable from their case which involved an infliction of emotion distress claim attributable to the employer's bad faith administration of the employee's compensation claim. The court stated that there is "no reason to suppose that, for workers' compensation purposes, our legislature intended to distinguish between commercial insurers and self-insurers." Id., 708. The court further stated that "General Statutes §§ 31-278, 31-288(b), 31-300 and 31-303 authorize a workers' compensation commissioner to provide financial remedies to reimburse an employee for costs associated with unwarranted delay in the receipt of workers' compensation payments . . . [B]y providing remedies for such conduct, the legislature evinced its intention to bar a tort action for the same conduct proscribed and penalized under the act." (Citation omitted; internal quotation marks omitted.) Id.
SNET's motion to strike counts one and two is granted
At issue in count three is whether the plaintiff may bring a CUTPA claim against its employer for their alleged workers' compensation violations. Count three incorporates the facts of count one. The plaintiff argues that SNET, which is engaged in commerce within the meaning of General Statutes § 42-110a(4), caused the plaintiff through a conspiracy to sustain financial damages due to their misrepresentations. SNET argues that CUTPA does not extend to the employment relationship. The court agrees with the plaintiff.
"[A]lthough an employer may engage employees for the purpose of promoting trade or commerce, the actual employment relationship is not itself trade or commerce for the purpose of CUTPA." (Internal quotation marks omitted.) Quimby v. Kimberly Clark Corp., 28 Conn.App. 660, 670, 613 A.2d 838 (1992); See also Fortunato v. Office of Stephen M. Stilson, D.D.S., supra, 48 Conn.Sup. 642. While the plaintiff may argue that he is the victim of a conspiracy, he has not alleged that fact in his pleading. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). SNET's motion to strike count three for failing to state a proper CUTPA claim is granted.
Summarily this court strikes counts one through three of the plaintiff's complaint as counts one and two are barred by the exclusivity provision of the Workers' Compensation Act and count three is not actionable under CUTPA.