Opinion
No. CV02 0463372
August 17, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff has brought an action against the defendant who is the owner of real property located at 183 Peck Avenue, West Haven, Connecticut. The plaintiff alleges that on or about March 18, 2000, while in the course of his employment with Conniff Restoration Inc., he was lawfully on the defendant's premises performing yard work at the defendant's request, when he stepped into a land depression and fell, causing him to sustain injuries. On the date of the plaintiff's alleged injuries, the defendant Raymond J. Conniff had instructed the plaintiff to travel to the premises at 183 Peck Avenue to do various yard work chores.
The plaintiff filed for and received workers' compensation benefits from Conniff Restoration, Inc. Conniff Restoration, Inc. has filed an intervening complaint alleging that it has paid workers' compensation benefits to the plaintiff and, therefore, is entitled to a lien pursuant to General Statutes § 31-293. The defendant Raymond Conniff, in addition to being the owner of the subject premises, is an owner, stockholder and President of Conniff Restoration, Inc. In his corporate capacity, Conniff hired the plaintiff, signs his paychecks and controls the plaintiff's work.
The defendant Raymond Conniff has moved for summary judgment, submitting that the plaintiff is attempting to assert a claim under the dual capacity doctrine. The defendant further argues that the plaintiff cannot recover because the employer and the alleged tortfeasor are the same, and therefore, the plaintiff is limited to the benefits provided by the Workers' Compensation Act, as the plaintiff's action is barred by the exclusivity provision of the Workers' Compensation Act.
The plaintiff argues that the exclusivity provision of § 31-284 is not applicable, as the plaintiff has brought this action against the defendant Conniff as an individual, not against his corporate employer, Conniff Restoration, Inc. While plaintiff concedes that typically workers' compensation is the exclusive remedy for personal injuries arising out of and in the course of employment pursuant to § 31-284(a); See also Suarez v. Dickmont Plastics Corporation, 30 Conn.App. 630, 633 (1993); he argues that there are exceptions to this rule. One exception exists where there is proof of an independent relationship between the defendant third party and the employer. Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989). Another exception is for personal injuries caused by the negligence of a third-party tortfeasor. The plaintiff contends that Raymond Conniff, in his capacity as a property owner, was not the plaintiff's employer at the time of the injury. The plaintiff argues that the defendant Conniff put up a corporate veil to shield himself from personal liability, and that the defendant should not be allowed to pierce that corporate veil now that it is advantageous for him to do so by arguing that he is merely an individual business owner who chose to operate a business under a different name. See, Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371,423 A.2d 77 (1979).
The plaintiff additionally cites General Statutes § 31-292 for the proposition that the borrowed servant rule is an exception to the exclusivity doctrine. However, in this case the plaintiff was never loaned out or borrowed. The plaintiff has admitted in his complaint, that he was in the course of his employment with Conniff Restoration, Inc., when the accident occurred. The plaintiff has not pleaded or claimed that he was loaned to another employer. He has received workers' compensation benefits exceeding $50,000. The court finds this particular argument by the plaintiff troubling, as either the plaintiff falsely filed for workers' compensation benefits, or he now claiming that he was not in the course of his employment to influence the court's decision on this motion. The plaintiff cannot have it both ways. Either he was in the course of his employment and is rightfully collecting workers' compensation benefits or he wasn't in the course of his employment and has nonetheless, applied for and has accepted workers' compensation benefits. The court, therefore, dismisses this argument without further comment.
The law regarding the review of a motion for summary judgment is well established. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). Summary judgment must be granted where the claim is barred as a matter of law. Doty v. Mucci, 238 Conn. 800, 805, 679 A.2d 945 (1996).
I EXCLUSIVITY PROVISION
The defendant's motion for summary judgment claims that the plaintiff's action is precluded by the Workers' Compensation exclusivity provision, more fully set forth in General Statutes § 23-284(a), which 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 . . .
Section 31-275(10) of the Workers' Compensation Act defines employer as "any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, testate and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . ." Under the act's exclusivity provision, "[a]n 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 . . . All rights and claims between an employer who complies with the requirements of sub-section (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 . . ." Doe v. Yale University, 252 Conn. 641, 668, 748 A.2d 834 (2000).
Sec. 31-275(10) reads as follows:
(10) "Employer" means any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer, but all contracts of employment between an employer employing persons excluded from the definition of employee and any such employee shall be conclusively presumed to include the following mutual agreements between employer and employee: (A) That the employer may accept and become bound by the provisions of this chapter by immediately complying with section 31-284; (B) that if the employer accepts the provisions of this chapter, the employee shall then be deemed to accept and be bound by such provisions unless the employer neglects or refuses to furnish immediately to the employee, on his written request, evidence of compliance with section 31-284 in the form of a certificate from the commissioner, the Insurance Commissioner or the insurer, as the case may be; (C) that the employee may, at any time, withdraw his acceptance of, and become released from, the provisions of this chapter by giving written or printed notice of his withdrawal to the commissioner and to the employer, and the withdrawal shall take effect immediately from the time of its service on the commissioner and the employer; and (D) that the employer may withdraw his acceptance and the acceptance of the employee by filing a written or printed notice of his withdrawal with the commissioner and with the employee, and the withdrawal shall take effect immediately from the time of its service on the commissioner and the employee. The notices of acceptance and withdrawal to be given by an employer employing persons excluded from the definition of employee and the notice of withdrawal to be given by the employee, as provided in this subdivision, shall be served upon the commissioner, employer or employee, either by personal presentation or by registered or certified mail. In determining the number of employees employed by an individual, the employees of a partnership of which he is a member shall not be included. A person who is the sole proprietor of a business may accept the provisions of this chapter by notifying the commissioner, in writing, of his intent to do so. If such person accepts the provisions of this chapter he shall be considered to be an employer and shall insure his full liability in accordance with subdivision (2) of subsection (b) of section 31-284. Such person may withdraw his acceptance by giving notice of his withdrawal, in writing, to the commissioner. Any person who is a partner in a business shall be deemed to have accepted the provisions of this chapter and shall insure his full liability in accordance with subdivision (2) of subsection (b) of section 31-284, unless the partnership elects to be excluded from the provisions of this chapter by notice, in writing and by signed agreement of each partner, to die commissioner.
"Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the fact] . . . General Statutes § 31-275 et seq.; is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). 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 . . . In a word, these statutes compromise an employee's right to a common law tort action for work-related injuries in return for relatively quick and certain compensation . . . Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381, 698 A.2d 859 (1997). The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation. Taylor v. St. Paul's Universalist Church, 109 Conn. 737, 147 A. 671. Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 378-79, 731 A.2d 294 (1999); Doe v. Yale University, supra, 252 Conn. 672.
"The purpose of the [workers'] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. Panaro v. Electrolux Corp., [ 208 Conn. 589, 598-99, 545 A.2d 1086 (1988)]; Jett v. Dunlap, [ 179 Conn. 215, 217, 425 A.2d 1263 (1979)]. The [act] compromise[s] an employee's right to a common law tort action for work-related injuries in return for relatively quick and certain compensation. Panaro v. Electrolux Corp., supra, 599; see Hunnihan v. Mattatuck Mfg., Co., 243 Conn. 438, 446, 705 A.2d 1012 (1997); Dodd v. Middlesex Mutual Assurance Co., [ supra, 242 Conn. 381]; Mingachos v. CBS, Inc., [ supra, 196 Conn. 97]." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 799, 712 A.2d 396 (1998); Doe v. Yale University, supra at 675-76.
"The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act . . . Vanzant v. Hall, 219 Conn. 674, 678, 594 A.2d 967 (1991); Castro v. Viera, [ 207 Conn. 420, 433, 541 A.2d 1216 (1988)]." Dowling v. Slotnik, supra, 244 Conn. 800-01. Just as a claimant may invoke the act's remedies only if the claimant satisfies the jurisdictional requirement of an employee as set forth in § 31-275(9); Dowling v. Slotnik, supra, 800-01; Kinney v. State, 213 Conn. 54, 60, 566 A.2d 670 (1989); only those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in § 31-275(10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee. Doe v. Yale University, supra, at 680. "In short, if the defendant was the plaintiff's employer, the plaintiff was relegated to the remedies afforded by the Workmen's Compensation Act." Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. 376.
Whether a defendant is an employer under the act is, therefore, a question of the specific defendant's degree of control over the alleged employee. "The `right to control' test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has `the right to control the means and methods' used by the worker in the performance of his or her job. Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996); Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); Ross v. Post Publishing Co., [ 129 Conn. 564, 567, 29 A.2d 768 (1943)]." Hanson v. Transportation General, Inc., supra, 245 Conn. 620. "The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere . . . Latimer v. Administrator, [ 216 Conn. 237, 248, 579 A.2d 497 (1990)]; Caraher v. Sears, Roebuck Co., 124 Conn. 409, 413-14, 200 A. 324 (1938)." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995); Doe v. Yale University, supra at 680-81.
While other states have applied the dual capacity doctrine to determine whether an employer possesses a second persona so completely independent from and unrelated to his status as employer that the law recognizes it as a separate person employer Connecticut has refused to recognize the dual capacity doctrine as an exception to the Workers' Compensation Act. See Panaro v. Electrolux Corp., supra, 208 Conn. 599. "[T]he Workers' Compensation Act "`represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries; Libby v. Goodwin Pontiac-GMC Truck Inc., 241 Conn. 170, 174, 695 A.2d 1036 (1997); Durniak v. August Winter Sons, Inc., 222 Conn. 775, 781, 610 A.2d 1277 (1992); and that the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts. Libby v. Goodwin Pontiac-GMC Truck, Inc., supra, 174-75; Durniak v. August Winter Sons, Inc., supra, 781; Bouley v. Norwich, supra, 222 Conn. 760; Pannaro v. Electrolux Corp., supra, 208 Conn. 605; Mingachos v. CBS, Inc., supra, 196 Conn. 106." Dowling v. Slotnik, 244 Conn. 781, 811, 712 A.2d 396 (1998) "Because of the statutory nature of our workers' compensation system, policy determinations as to what jurisdictional limitations apply . . . are for the legislature, not the judiciary . . . to make." (Emphasis added.) Id., quoting, Discuillo v. Stone Webster, 242 Conn. 570, 577, 698 A.2d 873 (1997).
From the complaint and the affidavits filed by the parties, the court concludes that the defendant was in the position of employer and that the plaintiff was his employee. The plaintiff was hired, employed, directed and controlled in his job activities by Raymond Conniff an owner and President of Conniff Restoration, Inc. to assist Conniff in his business and the plaintiff's paychecks were signed by him. Conniff Restoration, Inc.'s services encompasses a wide variety of services, including occasional landscaping, and the plaintiff, in his capacity as an employee, was directed by Raymond Conniff to go to 183 Peck Avenue, West Haven, Connecticut on March 18, 2000, to perform landscaping tasks. Significantly, the plaintiff was enabled to receive workmen's compensation benefits for his injuries because the defendant, as employer, maintained workmen's compensation insurance coverage for his employees, including the plaintiff. "The mere fact that the defendant chose to do business under a separate name does not confer upon him the "dual-personality' of employer and employee so as to make him amenable to a suit for negligence." Velardi v. Ryder Truck Rental, Inc., supra, 178 Conn. 377.
The court is aware that the issue of the plaintiff's rights if the defendant had been incorporated was not addressed in Velardi v. Ryder Truck Rental Inc. supra. Velardi addressed a business name used for a sole proprietorship, not a corporation or a partnership. See Velardi v. Ryder Truck Rental, Inc., supra at 376. However, the court has reviewed Judge Lewis's decision in Ferrara v. Willard Road, LLC., Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV 98-0167924 (September 12, 2001, Lewis, J.T.R.), where the defendant had filed a special defense claiming that the plaintiff's action was barred by the Workers' Compensation Act's exclusivity provision. The plaintiff filed a motion to strike the special defense, and that motion was denied due to the fact that the plaintiff's employer, Concord Industries, Inc., had a five percent ownership interest in the defendant Willard Road LLC, which owned the property where the plaintiff fell. The court found that the claimed five percent ownership interest in Willard Road LLC by Concord Industries, Inc., the plaintiff's employer, was sufficient to allow the special defense to survive to trial on the issue that the defendant Willard Road LLC., was an employer of the plaintiff.
It is not disputed in the matter presently before the court that the defendant Raymond Conniff is an owner (emphasis added) of Conniff Restoration, Inc., the plaintiff's employer. In adopting the reasoning of Judge Lewis in Ferrara v. Willard Road LLC, supra, the court concludes that by entering suit against Raymond Conniff, owner of the subject premises, and also an owner of Conniff Restoration, Inc., the plaintiff Timothy Sullivan is, in fact, bringing a claim against his own employer. Consequently, the plaintiff Sullivan's sole remedy is the Workers' Compensation Act. Accordingly, the defendant's motion for summary judgment is granted.
THE COURT
By Arnold, J.