Opinion
CV136039638S
03-27-2017
Michael Wyatt v. Stafford Springs Enterprises, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Cesar A. Noble, J.
The exclusive remedy provisions of the Workers' Compensation Act (act) bar recovery in common-law tort actions by employees against employers for job-related injuries unless the claim fits within certain narrow exceptions. The issue before the court is whether the defendants may use this bar to assert the legal insufficiency of the plaintiff's complaint through a motion to strike. Because the allegations of the complaint do not establish that the exclusivity of the act is applicable, the motion to strike is denied.
General Statutes § 31-284(a) provides in pertinent 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, but an employer shall secure compensation for his employees as provided under this chapter . . . 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 . . ."
FACTS AND PROCEDURAL HISTORY
The following procedural history and facts are relevant to this motion to strike. The operative complaint of the plaintiff, Michael Wyatt (Wyatt), is the second amended complaint (complaint) dated August 24, 2016. The factual allegations are that on July 4, 2011, Wyatt began working for either Atlas Advanced Pyrotechnics, Inc., or Atlas Pyrovision Productions, Inc., both of which are defendants and the only movants in the motion to strike before the court. The co-defendant, Carl Palmberg (Palmberg), is alleged to be an agent, servant and/or employee of either Atlas Advanced or Atlas Pyrovision. Atlas was retained by the co-defendant, Stafford Springs Enterprises, Inc., d/b/a Stafford Motor Speedway (Stafford Springs), to conduct a fireworks show on September 2, 2011. The separate counts against Atlas Advanced and Atlas Pyrovision identically claim that Wyatt was required to pass a test in order to obtain a permit to conduct work for the Atlas defendants. The counts against Atlas Advanced claim that Palmberg instructed Wyatt that he would take the test for Wyatt, and did so, thereby fraudulently earning Wyatt the permit, which in turn allowed Wyatt to work the September 2, 2011 fireworks show for Atlas Advanced. The counts against Atlas Pyrovision allege simply that Palmberg knowingly took the permit test for Wyatt, thereby earning the latter the permit to be able to work the September 2, 2011 fireworks show for Atlas Pyrovision. The difference is not significant for purposes of this decision. On the evening of September 2, 2011, Palmberg directed Wyatt to use a road flare to light the fireworks and as Wyatt was doing so, the fireworks exploded causing Wyatt serious injury.
Where necessary, Atlas Advanced Pyrotechnics, Inc. will be referred to as Atlas Advanced and Atlas Pyrovision Productions, Inc. as Atlas Pyrovision. The allegations against them are virtually identical. Collectively they will be referred to as the " Atlas defendants."
Counts one and two, not the subject of the motion to strike, are directed to Atlas Advanced and Atlas Pyrovision, respectively. The plaintiff, recognizing that the act provides the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment; see Jaiguay v. Vasquez, 287 Conn. 323, 328-29, 948 A.2d 955 (2008); drafted the counts so as to avail himself of the exception to the act's exclusivity provisions. As enunciated in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994), an exception exists to the employer's tort immunity when the employer commits an intentional tort or where the employer has engaged in wilful or serious misconduct. Id., 106. Counts seven and eight appear under the heading of " Negligence" against Atlas Advanced and Atlas Pyrovision, respectively. They each allege that the Atlas defendants " acted in a manner that made an injury to Wyatt likely to occur" because Atlas required Wyatt to light the firework display with a road flare; required Wyatt to work without the proper protective gear; agreed to perform a firework display when insufficient time existed for use of an electronic ignition set up; allowed Wyatt to operate and launch fireworks without proper training, licensing or experience; and allowed Palmberg to fraudulently take the permit exam for Wyatt. The acts and omissions were alleged to be substantially likely to cause injury to Wyatt.
On September 19, 2016, Atlas Advanced and Atlas Pyrovision jointly filed a motion to strike counts seven and eight on the ground that the plaintiff's claims are barred by the act's exclusivity provision because they allege negligence against his employer. The Atlas defendants point out that an employee may escape the exclusivity of the act only if the employer intended both the act itself and the injurious consequences of the act (intended tort theory) or that the employer must have intended the act and known that the injury was substantially certain to occur from the act (substantial certainty theory). Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280, 698 A.2d 838 (1997). In the view of the Atlas defendants, the plaintiff insufficiently pleaded either theory in the seventh and eighth counts because the counts did not contain the allegations of intent required for a plaintiff to bring a tort claim against his employer.
The plaintiff objected to the motion to strike on November 15, 2016. He does not dispute the assertion that the allegations of counts seven and eight are insufficient to support a claim under Suarez . Instead, he argues that the pleadings do not allege an employer/employee relationship between the Atlas defendants. He specifically notes that there is no allegation that he was an " agent, servant, or employee" of the Atlas defendants or that Palmberg was his " boss." Wyatt asserts that a construction of the facts in the complaint most favorable to sustaining its legal sufficiency--one the trial court must adopt in ruling on a motion to strike--permits proof that Wyatt was an independent contractor rather than an employee and thus the workers' compensation act's exclusivity is not applicable.
The Atlas defendants replied to Wyatt's objection on January 19, 2017 with the argument that the application of the " right to control test" --employed to distinguish between an employer/employee and independent contractor relationship--yields the conclusion that counts seven and eight allege only an employee/employer relationship. The court is not persuaded.
STANDARD
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
ANALYSIS
There is no appellate authority on the precise issue of whether a motion to strike is the proper device to raise the workers' compensation tort bar to suit by an employee against an employer. There is also no unanimity among the judges of the Superior Court on this issue. The majority have concluded that the exclusivity provisions of the act may properly be raised only as a special defense and not a motion to strike. See Abendroth v. Moffo, Superior Court, judicial district of New Britain, Docket No. CV-12-6014994-S (October 17, 2012, Swienton, J.) (54 Conn.L.Rptr. 830, 831, ) 2012 WL 5477079, at *2 (noting that overwhelming majority of decisions held that exclusivity is properly asserted as special defense and not motion to strike); Whitlatch v. Summit Handling Systems, Inc., Superior Court, judicial district of New Haven, Docket No. CV-10-6014119-S (December 15, 2011, Wilson, J.) (53 Conn.L.Rptr. 133, 135, ) 2011 WL 6975997, at *3 (same).
As the court, Wilson, J., noted in Whitlatch, the line of cases rejecting a motion to strike as a means to raise the workers' compensation bar to tort recovery are consonant with the reasoning in Grant v. Bassman, 221 Conn. 465, 604 A.2d 814 (1992), in which the Supreme Court held that the exclusive election of workers' compensation is properly raised by a special defense rather than a motion to dismiss for lack of subject matter jurisdiction. Id., 472. In Grant, a tort action by a minor employee against his employer, the defendant employer claimed that under prior precedent an illegally employed minor plaintiff was required to either " avoid the employment contract by bringing a common law tort action or to ratify the contract by pursuing his workers' compensation remedy." Id. 469-70. The court recognized that the " purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The claim that a plaintiff has elected an exclusive remedy relies on facts outside those alleged in the complaint that operate to negate what may once have been a valid cause of action . . . It is therefore both rational and fair to place the burden of pleading and proving an election of remedies on the party asserting the claim, usually the defendant . . . It would be an undue burden to require [a plaintiff] to negate the occurrence of any and all subsequent events that could operate to destroy his cause of action." (Citations omitted; footnote added; internal quotation marks omitted.) Id., 472-73.
Practice Book § 10-50 states in pertinent part: " No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
Moreover, in the context of a motion to strike it is of no moment that the defendant might prove facts outside the allegations of the complaint that would bar the plaintiff's action. It is axiomatic that the court is limited solely to the inquiry of whether the allegations of the complaint state a legally sufficient cause of action. " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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).
Conversely, a court properly may consider whether an action is barred if the allegations of the complaint contain sufficient facts to trigger the operation of the bar. Thus, while the statute of limitations--specifically identified in Practice Book § 10-50 as necessarily pleaded as a special defense--must normally be pleaded as a special defense and not raised by a motion to strike; Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006); an exception to this general rule exists where the " parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).
On similar grounds, our Supreme Court in Almada v. Wausau Business Ins. Co., 274 Conn. 449, 454, 876 A.2d 535 (2005) considered on appeal the defense of the exclusivity provision of the act, even though it had not been pleaded as a special defense, as normally required, because the complaint stated the same essential facts as would have been necessary for the special defense. Id., 455-56. The existence of a factual foundation in the complaint served as the basis for the granting of a motion to strike on the grounds of the exclusivity of the act where " the plaintiff has alleged sufficient facts in the complaint to bring his claim within the exclusivity provision, the defendants are not relying on facts that are outside the complaint and the plaintiff has not objected to the use of a motion to strike to raise the issue." Balch v. Pioneer Adjustment Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6036452-S (August 14, 2013, Nazzaro, J.) (56 Conn.L.Rptr. 717, 719 n.2, ) 2013 WL 4779545, at *2. Accordingly, a motion to strike may properly raise the exclusivity of the act under the appropriate circumstances.
The court finds, however, that contrary to the assertion of the defendants, the allegations of the plaintiff's complaint do not provide the elements necessary for the application of the workers' compensation exclusivity provision. Wyatt argues the allegations of the complaint permit the factual finding that he was an independent contractor and thus not subject to the act's exclusivity. " The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact." (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., 126 Conn.App. 717, 727, 12 A.3d 603 (2011), quoting Chute v. Mobil Shipping & Transportation Co., 32 Conn.App. 16, 19-20, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993). " As a general proposition: [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work . . . It is the totality of the evidence that determines whether a worker is an employee under the [workers' compensation] act, not subordinate factual findings that, if viewed in isolation, might have supported a different determination." (Internal quotation marks omitted.) Compassionate Care, Inc. v. Travelers Indemnity Co., 147 Conn.App. 380, 390, 83 A.3d 647 (2013). " [A]ctual control or direction is not the test, significant though it may be. The real test is whether the employer has the right to direct." Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951).
Mindful of these principles the court finds that the facts within the plaintiff's complaint do not necessarily implicate the act's bar to a tort action at common law against the Atlas defendants. It is true that the allegations of the complaint imply that the right to control the means and methods of work--crucial to an employer/employee relationship--is vested in the Atlas defendants. The plaintiff alleges in Paragraph 9 of count seven that Palmberg " instructed" Wyatt that he would take the permit test for the plaintiff. Paragraph 13 of both counts seven and eight provide that Palmberg " directed" Wyatt to use a road flare to light the fireworks. Both counts also allege that the Atlas defendants " required" Wyatt to light the firework display with a road flare and to work without the proper protective gear. The use of the verbs " instruct, " " direct" and " require" is indicative of the fact that Palmberg and the Atlas defendants dictated, and thus controlled, the conditions of Wyatt's employment and the manner in which he performed the work.
The dispositive factor is not, however, whether Atlas did in the events detailed in the complaint interfere with or control Wyatt's work but whether it had the general right to do so. " It is not the actual partial control or interference, or the actual assistance rendered by the employer in doing the work or the right and authority to do so, but the right of general authority and control over the work which marks the distinction between the relation of independent contractor and that of master and servant." (Emphasis added.) Welz v. Manzillo, 113 Conn. 674, 680, 155 A. 841 (1931). The complaint is silent as to such general authority.
This case is thus similar to Gibson v. Gym Doctor, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-13-6020511-S (December 16, 2013, Roche, J.) 2013 WL 6926043, in which the court denied a motion to strike a complaint that claimed the plaintiff school teacher was injured when a basketball backboard landed on top of him. The defendant, the plaintiff's employer, raised the bar of the workers' compensation exclusivity to which the plaintiff countered that the complaint did not allege that the plaintiff was acting within the course and scope of his employment at the time of injury. Id. at *2. The trial court denied the motion to strike with the observation that the " plaintiff has taken an ambivalent position that gives him some temporary refuge." Id. at *3. Such are the circumstances in the present case.
CONCLUSION
Because the complaint does not address the presence or absence of the Atlas defendant's general authority to control the means and methods of work, an essential factor to the determination of the parties' relationship and thus the application of the act's exclusivity, this case does not fall within that limited class of cases which are susceptible of disposition by a motion to strike that raises the workers' compensation bar to tort recovery. The motion to strike is therefore denied.