Opinion
FBTCV166060567S
09-21-2017
Technology Assigned Risk aso RCO Construction, LLC v. Hobbs, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTIONS TO STRIKE DEFENDANT'S AMENDED COUNTERCLAIMS FOR APPORTIONMENT, NOS. 132 & 133
Anthony D. Truglia, Jr., J.
Facts and Procedural Background
On November 14, 2016, the plaintiff, Technology Assigned Risk, LLC, filed two consolidated actions against the defendants, Hobbs, Inc. (Hobbs) and Randall Burr. In both actions, the plaintiff alleges the following facts. The plaintiff is the workers' compensation insurance carrier for RCO Construction, LLC (RCO). On September 15, 2015, Joao Saules (Docket No. CV-16-6060567-S) and Fabio Campos (Docket No. CV-16-6060578-S) were employed by RCO and working on construction of a new residence in Greenwich. Both men were working on raising a wall for the new structure when the wall accidentally collapsed and seriously injured them. At the time of the accident, RCO was a contractor pursuant to a written subcontractor agreement for the defendant Hobbs, which served as a general contractor for the project. The plaintiff further alleges that the defendant Burr was " the construction manager on behalf of Hobbs, Inc. . . . who exercised possession, control and supervision over the entire construction project and work performed" at the site on the day of the accident.
Saules and Campos filed timely claims for workers' compensation benefits for their injuries pursuant to General Statutes § § 31-275 et seq., which the plaintiff paid. The plaintiff has brought these two actions pursuant to General Statutes § 31-293, claiming money damages and other relief from the defendants for amounts paid to Saules and Campos. In both actions, the plaintiff claims that Saules' and Campos' injuries were caused by the negligence and carelessness of the defendants in one or more of several ways. The plaintiff alleges that the defendants were negligent in that they, inter alia, " failed to supervise the construction site, including the work being performed by [Saules and Campos] and [RCO], " " failed to provide the proper equipment to raise the proper equipment and/or manpower to raise the wall, " and " failed to provide a safe working environment for all those involved in raising the wall, including [Saules and Campos] and [RCO.]" The plaintiff claims that the defendants' negligence and carelessness caused Saules and Campos great pain and suffering and the loss of their ability to enjoy life. The plaintiff also claims that the defendants' negligence caused Saules and Campos to incur medical expenses for their injuries and also caused a loss of present and future earning capacity. The plaintiff now seeks, through the two consolidated actions presently before the court, to recover amounts paid to Saules and Campos from the defendants as subrogee of RCO.
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 who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, ...; and 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."
The defendants filed timely complaints for apportionment of liability in each action pursuant to General Statutes § § 52-102b and 52-572h. The defendants then filed amended counterclaims in each action. The defendants allege in their apportionment counterclaims that the injuries and losses which Saules and Campos sustained on the job site were " proximately caused by the negligence and carelessness of RCO." The defendants allege in their counterclaims that RCO was negligent in one of several ways on the date of the accident, including: failure to supervise the construction site; failure to provide proper equipment and manpower for raising the wall from the ground to an upright position; failure to ensure that all persons involved in raising the wall, including Saules and Campos, were properly trained; and failure to make proper inspections and to ensure a safe working environment for all persons involved in raising the wall. The defendants allege in each action now before the court, that " [i]f [Saules and Campos] sustained injuries . . . which is denied by [the defendants], then [RCO] was negligent [on the date of the accident] and such negligence was a substantial factor in causing the injuries and damages sustained by [Saules and Campos]." The defendants seek " apportionment of liability . . . consistent with the provisions of [General Statutes § § ]52-572h et seq., and 52-102b."
General Statutes § 52-102b(a) provides in relevant part: " A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability."
General Statutes § 52-572h(c) provides in relevant part: " In a negligence action to recover damages resulting from personal injury ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ..."
The plaintiff has moved to strike the counterclaims for apportionment in each case. The plaintiff argues that a claim for apportionment against an employer is barred by the exclusive remedy provisions of General Statues § 31-284(a). The plaintiff further argues that its claim is based on a statutory right for reimbursement for workers' compensation benefits paid and therefore, a claim for apportionment or contribution against an employer is impermissible under § 52-572h.
In case ending in docket no. 0567, the motion to strike is entry no. 132; in case ending in docket no. 0578 the motion to strike is entry no. 133.
General Statutes § 31-284(a) provides in relevant part: " An employer ... 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 ..."
In response, the defendants argue that there are exceptions to the exclusivity provision of the Workers' Compensation Act, and that such exceptions are applicable to the present case. Specifically, the defendants argue that when an employer and a third party " have a relationship independent of a claim based on negligence alone, whether contractual, landlord-tenant, bailor-bailee, etc., apportionment can proceed." The defendants contend that RCO had a written subcontractor's agreement with the defendant Hobbs which established rights and obligations between them related to the project on which Saules and Campos were injured. The subcontract, among other things, imposed a duty upon RCO to indemnify and hold the defendant Hobbs and its employees harmless from any claims arising from the defendant Hobbs' employment of RCO as a subcontractor. Thus, the defendants argue, there was a relationship between RCO and the defendants outside of the defendants' claims of negligence against RCO sufficient to satisfy the exception to the exclusivity provision of the Workers' Compensation Act. Moreover, the defendants argue that the stated exclusivity provision is not as narrowly drawn as argued by the plaintiff and thus, an apportionment claim need not be based solely on claims of negligence. The defendants argue that as a result their counterclaims, which assert a contractual relationship between the parties in addition to a claim for negligence, are legally sufficient as pleaded and accordingly, the motion to strike should be denied.
Discussion
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, . . ." Practice Book § 10-39(a). " A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 48-49, 91 A.3d 412 (2014). " 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). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011). The facts alleged in the complaint (or counterclaim) should be construed in a manner most favorable to sustaining its legal sufficiency. See, e.g., Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); Assurance Company of America v. Yakemore, 50 Conn.Supp. 28, 31, 911 A.2d 777 (2005).
The defendants concede that a third party cannot seek apportionment against an employer simply because the employer's negligence may have contributed to the employee's injury. General Statues § 31-284(a) provides in part that " [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 . . . but an employer shall secure compensation for his employees as provided under this chapter." The defendants, however, allege in their counterclaims both that: (1) RCO was negligent on the day of the incident and also that (2) RCO had a contractual duty to indemnify them and hold them harmless for claims RCO's employees might make against them, to the extent that the defendants are not exclusively liable. The defendants cite to Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), in support of their claim that a third party can bring an action for apportionment against an employer, provided that a relationship between them exists in addition to and apart from the claim for negligence. In Ferryman v. Groton, supra, 146, our Supreme Court allowed a third-party claim for indemnification against an employer, despite the exclusivity provision of the Workers' Compensation Act, where the claim for indemnification was based on a relationship other than negligence. The plaintiff's decedent's employer, the Electric Boat Division of General Dynamics Corporation (Electric Boat), was also the co-owner of the real estate where the decedent was killed. Id., 140. The city's allegations against Electric Boat described " an owner whose property, while in the possession of another, is alleged to have caused the death of a third person whose access to the property has been furnished by the agent of the party in possession." (Footnote omitted.) Id., 146. In determining that the allegations of the third-party complaint were facially sufficient, our Supreme Court reasoned that " [t]he right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a `primary' wrongdoer impliedly promises to indemnify a 'secondary' wrongdoer, the great majority of jurisdictions disallow this claim." Id., 145. " [A]llegations that are based solely upon . . . active or primary negligence . . . are simply inadequate to establish the independent relationship that would obviate the operation of the exclusive remedy doctrine in [the employer's] favor." (Citation omitted; internal quotation marks omitted.) Id. Thus, our Supreme Court found that indemnification, or contribution between multiple tortfeasors, was proper in Ferryman because the city's claim against the decedent's employer was based on an " express or implied independent, legal duty that [served] to preclude the operation of the exclusive remedy provisions of § 31-284." Id., 146.
In the present case, the court agrees with the defendants that their allegations of an affirmative duty by RCO to indemnify and hold them harmless satisfies the requirement of " an express or implied independent legal duty" that could preclude operation of the exclusivity provisions of § 31-284. However, the court also agrees with the plaintiff that the defendants' attempt to assert a counterclaim through General Statutes § § 52-102b and 52-572h is improper as a matter of law.
First, General Statutes § 52-102b allows a defendant to " serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages." (Emphasis added.) Here, RCO, as subrogor of the plaintiff, is already a party to the action. Thus, the provisions of § 52-102b are inapplicable.
Second, § 52-572h(c) allows the trier of fact to allocate liability among multiple tortfeasors " if damages are determined to be proximately caused by the negligence of more than one party." Here, the plaintiff brings these two actions pursuant to its statutory right of reimbursement under § 31-293(a). In Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992), our Supreme Court held that " [b]y its own terms, [§ 52-572h] applies only to causes of action based on negligence . . . Accordingly, its terms do not govern statutory causes of action that have no common law counterpart . . . Because an employer's right to obtain reimbursement from a third party tortfeasor is a statutory claim that is derived in its entirety from § 31-293(a) . . . the employer's claim does not fall within the compass of § 52-572h." (Citations omitted; internal quotation marks omitted.) Thus, in the present case, the court agrees with the plaintiff that, despite the contractual indemnification agreement alleged by the defendants in their counterclaims, rights of apportionment between multiple tortfeasors set forth in § 52-572h do not apply to the statutory right of employers to recover against third parties pursuant to § 31-293.
Third, to the extent that the defendants' claims are based on their contractual right of indemnification, the provisions of § 52-572h still do not apply, as that statute governs the allocation of liability among joint tortfeasors in negligence actions only. The defendants' contractual claims for indemnification may properly be raised in a counterclaim or right of setoff under Practice Book § 10-54, and not through a claim for apportionment pursuant to § 52-572h.
Conclusion
For the reasons set forth above, the defendants' apportionment counterclaims in both consolidated actions are legally insufficient. The plaintiff's motions to strike the defendants' counterclaims are granted.