Opinion
No. CV-97-0407347 S
June 15, 2004
MEMORANDUM OF DECISION
The plaintiff pedestrian, Robert Alvine, was struck by an automobile owned and operated by the defendant Charles Murray on October 3, 1996 in the parking lot adjoining the Sears Auto Center and Salerno's Restaurant located in Orange, Connecticut. The plaintiff alleges that Murray, at the time of the incident was the "agent, servant or employee of the defendant Colonial Properties, Inc., acting within the scope of his authority or employment." The case has been claimed for jury trial. However, the parties have agreed that the issue of agency between the defendants Murray and Colonial Properties, Inc. be bifurcated and that the issue of agency be tried by the court.
The court trial on the issue of agency took place on October 30, 2003, and November 10, 2003. The parties, thereafter, requested an opportunity to brief the issues and they have done so. The defendants filed their memorandum of law on January 20, 2004, and the plaintiff filed his memorandum of law on February 10, 2004. The parties, thereafter, consented to an extension of time for the court to file its memorandum of decision.
The plaintiff argues that General Statutes § 20-312a establishes that Murray was Colonial Properties, Inc.'s agent and that the evidence shows that Murray was acting within the scope of his agency or employment. The plaintiff further argues that in the event that § 20-312a is not applicable, the evidence demonstrates that Murray was an employee, not an independent contractor of Colonial's and that the accident occurred in the course of Murray's employment.
Sec. 20-312a. Liability of brokers for salespersons affiliated as independent contractors.
In any action brought by a third party against a real estate salesperson affiliated with a real estate broker as an independent contractor, such broker shall be liable to the same extent as if such affiliate had been employed as a real estate salesperson by such broker.
The defendant Colonial Properties, Inc. argues that General Statutes § 20-312a is inapplicable to this case. Further, Colonial maintains that the plaintiff has failed to meet his burden of proof that Murray was acting as an agent for it and was within the course and scope of his employment at the time of the accident. Moreover, even if Murray was acting as an agent for Colonial, he was an independent contractor.
I FINDINGS OF FACT
On October 3, 1996, the plaintiff was waiting in the parking lot of the Sears Auto Center and Salerno's Restaurant in a shopping center located at the intersection of the Boston Post Road and Bull Hill Lane in Orange, Connecticut when he was struck by an automobile owned and operated by the defendant Charles Murray. After striking the defendant Murray stopped his vehicle, rolled down his window and inquired as to the plaintiff's well-being. When the plaintiff informed Murray that he was injured, Murray exited his vehicle to assist the plaintiff. After the plaintiff informed Murray that he could not get up from the ground, Murray walked away and got into his vehicle. At that time the plaintiff, fearing that Murray would leave the scene yelled to Murray, demanding some identification from Murray. Murray parked his vehicle, returned to where the plaintiff was the plaintiff was located and handed the plaintiff a business card, identifying Murray as a "Vice President-Sales" for the defendant Colonial Properties. Within this short period of time, which took several minutes, Murray verbally volunteered information to the plaintiff that he was vice president of sales for Colonial and that his office was nearby. Murray informed the plaintiff that at the time he struck the plaintiff he was taking a shortcut across the parking lot and was "probably" on his way to, or returning from a business call.
At the time of trial, it was revealed that Murray, who was 78 years old at the time of the accident, now resides at an intermediate health care facility, suffering from the effects of dementia. He is presently 85 years old. Murray is unable to appear at trial to testify, but he was deposed on May 18, 1998. At that time no objection to the deposing of Murray was raised regarding his mental capacity to testify. Additionally, prior counsel for Colonial had submitted a copy of Murray's deposition testimony to the court (Thompson, J.) in support of a motion for summary judgment, which was later denied.
Murray, in his deposition testimony, admitted that he has worked in commercial real estate for Colonial Properties for a period of fifteen years. He admitted that he recalled the incident of October 3, 1996. He testified as to the weather conditions, the time of day, and that he was taking a short cut through the parking lot. He stated that he was "probably" coming from a call and proceeding to his office at 200 Post Road in Orange, Connecticut, although he couldn't be sure of his exact conversation with the plaintiff on October 3, 1996. He further admitted that he did not see the plaintiff prior to striking the plaintiff with his vehicle, but insisted that the plaintiff walked in front of his car. Murray conversed with the plaintiff both before and after he parked his vehicle. At all times, the plaintiff remained lying on the ground. Eventually the police arrived at the scene and took a statement from Murray and the plaintiff was transported for medical care. The police report was not entered into evidence, and thus, the court has no ability to use it for the purposes of the determining whether at the time of the incident, Murray was acting as the "agent, servant or employee of the defendant Colonial Properties, Inc., and was acting within the scope of his authority or employment."
Testimony by Murray's daughter, Betty Joe Murray, and Gary Richetelli of Colonial Properties, Inc., are of little assistance to the court in determining if the defendant Charles Murray was, in fact, in the course of making a business call on the afternoon of October 3, 1996. Ms. Murray testified that she was generally familiar with her father's work schedule, but she was unable to state whether or not Murray was working the afternoon of October 3, 1996. Richetelli also could not state whether or not Murray was working that afternoon. He testified that he learned of the accident that day from a secretary at Colonial, but he did not speak to Murray about the accident until the following day, October 4, 1996. Richetelli conceded that while he did not see Murray at the office, that day, he could have been working.
Murray's wife, Katherine is residing in Florida, while her husband remains in Connecticut at a healthcare facility. She testified that on October 3, 1996, she sent the defendant Murray to the Walgreen's Pharmacy in Orange, from their home in Branford, to get infant formula for the couple's three-month-old son. The Walgreen's Pharmacy in Orange is located in the shopping center where the accident occurred. She testified that her local Walgreen's Pharmacy in Branford did not have the type of infant formula needed, nor did any other store or pharmacy in Branford have the formula. Therefore, she had to send Murray to Orange, via I-95 from exit 54 in Branford to Exit 42 in Orange. This request for Murray to drive to Orange on the afternoon of October 3, 1996, is not credible, as Ms. Murray testified that her husband Charles Murray was suffering from dementia; had heart problems; was recovering from surgery; had to take regular naps in the afternoon; and was becoming increasingly confused. Ms. Murray, herself, had recently returned home from Orange, having had a luncheon engagement with the wife of Gary Richetelli, the owner of Colonial Properties, Inc. The court does not find her testimony credible regarding the reason for the defendant Murray's presence in Orange on the afternoon of October 3, 1996. Murray, himself, in his deposition testimony never mentions an emergency trip to the pharmacy to purchase infant formula.
Evidence received at trial in the form of a document entitled Uniform Independent Contractor Agreement and the testimony of Gary Richetelli, "owner" of Colonial Properties, Inc. confirms that Murray was a real estate salesperson for Colonial for approximately 15 years. Murray and Colonial, acting by Richetelli, signed the Independent Contractor Agreement on October 21, 1993, approximately three years prior to the accident on October 3, 1996. Per the terms of the agreement, Murray worked solely on a commission basis and was free to set his own office hours. Murray utilized his own automobile and paid his own car expenses, including car insurance and property taxes. Murray was responsible for the printing of his own business cards and had permission to use Colonial's logo on the cards. However, there has been no proof that he was authorized to list the title of "vice president-sales" on his business card. Taxes were not withheld from Murray's commissions and Murray received a 1099 tax form from Colonial, rather than a W-2 wage withholding statement. All commissions due to Murray as a result of his real estate transactions were made payable to Colonial and delivered to Colonial. Colonial then would pay Murray 60% of these commissions.
Murray paid for his own licensing fees and professional dues. Colonial did not control the course of contract negotiations on Murray's accounts, nor was Murray covered by Workers' Compensation benefits or health insurance benefits. However, the lack of coverage for Workers' Compensation benefits is due to the fact that within the terms of said agreement, Murray affirmatively elected "not to be covered by the policy" and waived the coverage, despite the fact that Colonial "has subscribed to the Workers' Compensation Statutes of this State." While the remaining language of the insurance paragraph states that as a result of such election Murray was deemed a self-employed person and that Murray and Colonial's mutual intent was not to create an employee/employer relationship, there was no testimony by Colonial that Murray was required to waive this coverage as a condition of his affiliation with Colonial. The court finds, that when Murray elected not to receive this Workers' Compensation coverage that Colonial had in place, it was optional and not a condition of Murray's affiliation with Colonial.
While the agreement repeatedly refers to Murray as an independent contractor or independent real estate person and disclaims that he is an employee, all real estate listings taken by Murray were required to be taken in the name of Colonial and were subject to Colonial's approval. The agreement also calls for Colonial to provide Murray with a $600 per month budget for advertising and telephone expenses. Upon receipt of commissions, Colonial would then reimburse itself for any monies expended by Murray from this monthly budget. Murray was required by Colonial to "strictly observe the most current operating procedures established by CPI (Colonial Properties, Inc.)." He was also required to "adhere to and abide by all majority decisions and rules of CPI," and to follow the "rules, regulations, operating procedures and policy directives" of Colonial. Murray was required to acknowledge that he had to adhere to such policies and directives, as a material consideration for the execution of the agreement by Colonial. The agreement further provided that Murray could not engage in non-Colonial real estate business and could not compete with Colonial. Murray was also required to abide by Colonial's dispute resolution procedures and a failure to do so was grounds for immediate termination by Colonial without prior notice. While either party could terminate the agreement by giving the other party 30 days notice, Colonial reserved the right to terminate Murray for cause without any advance notice.
Despite the aforementioned terms of the agreement requiring Murray to follow the rules, regulations, procedures and policies of Colonial, Richetelli testified that in effect there were no rules or regulations that Murray had to abide by other than "ones that were provided by the State of Connecticut and the Code of Ethics for all licensed real estate agents." The court does not find it credible that Colonial did not have any rules or operating procedures in effect for its salespersons. Richetelli would have the court believe that every salesperson was free to come and go as he or she wished, and that they were free to conduct their business without supervision, procedures and direction by Richetelli, other than abiding by state law and the realtor's Code of Ethics. Under this proposed scenario, the language of the Independent Contractor Agreement would be worthless regarding those clauses pertaining to the contractor's responsibilities, liability and indemnification, dispute resolution, mediation guidelines, trademark use privilege, termination and restrictions on subsequent business activity. The agreement contains very specific language regarding Murray's obligation to follow Colonial's rules, regulations and procedures and the court finds that such were in effect during Murray's tenure at Colonial.
II GENERAL STATUTES SEC. 20-312a
The plaintiff claims that the language of § 20-312a is clear and unambiguous and that the provisions of the statute have been met: (1) Murray was a real estate salesperson; (2) he was affiliated with a real estate broker; and (3) he was an independent contractor. Therefore, Colonial shall be liable to the same extent as if such affiliate (Murray) had been employed as a salesperson. The plaintiff contends that the statute does not limit liability in any way, and that the statute only denies the employing real estate broker the defense that the salesperson is an independent contractor.
The court approaches the questions raised regarding the interpretation of statutes according to the well-established principles of statutory construction designed to further the fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986). The court must look to the words of the statute; to the legislative history; the circumstances surrounding its enactment; to the legislative policy it was designed to implement; and to its relationship to existing legislation and any common-law principles governing the same subject matter. Dart Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); Texaco Refining Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987); State v. Jason B., 248 Conn. 543, 729 A.2d 760 (1999).
The legislature has recently enacted Public Act 03-154, effective October 1, 2003, which provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Until such time as the constitutionality of Public Act 03-154 is challenged and determined, the court respects the will of the legislature and applies the rule set forth in Public Act 03-154 to determine whether § 20-312a is applicable to personal injury actions such as the instant case.
General Statutes § 20-312a falls under Title 20 of the General Statutes, entitled Professional and Occupational Licensing, Certification, Title Protection and Registration, Examining Boards. Chapter 392, which includes § 20-312a is titled Real Estate Brokers and Salespersons. If the plaintiff's personal injury action falls within the purview of § 20-312a, the effect would be that Colonial would be vicariously liable for the conduct of Murray at the time of the accident if Murray was working within the scope of his employment.
The court determines that § 20-312a is not applicable to personal injury accidents. Section 20-312a is limited to actions brought by parties who have a professional relationship with the salesperson and which arise out of that relationship, as a result of real estate transactions or dealings. Section 20-312a sits in the comprehensive scheme of real estate laws designed to protect the public from fraud, deceit and unlicensed real estate salespersons. Chapter 391 creates the Real Estate Commission and defines its scope of authority. Chapter 392 is a scheme of statutes governing consumer protection in the real estate context. This scheme of statutes seeks to protect consumers, who may identify a salesperson with the reputation of a particular broker, from that salesperson's deceit. Section 30-312a does not govern personal injury actions and claims that have nothing to do with a real estate transaction. In viewing the text of the statute itself and its relationship to other statutes, it is clear that § 20-312a is not applicable to the facts in this case.
The court notes that § 20-312b defines when a real estate salesperson is not to be deemed an "employee" under General Statutes § 31-275, which deals with eligibility for Workers' Compensation benefits. Under § 20-312b the legislature limits the liability of the real estate employer of the broker or salesperson, as it regards workers' compensation. It seems unlikely, therefore that in the immediately preceding statute the legislature would be expanding the scope of the employer's liability to personal injury actions resulting from an employee or agent's negligence.
§ 20-312b states:
A licensed real estate broker or real estate salesperson shall not be considered an employee under the provisions of section 31-275 if substantially all of the remuneration for the services performed by such broker or salesperson, whether paid in cash or otherwise, is directly related to sales or other output rather than to the number of hours worked, and such services are performed by the broker or salesperson pursuant to a written contract that contains the following provisions:
(1) The broker or salesperson, for purposes of workers' compensation, is engaged as an independent contractor associated with the person for whom services are performed;
(2) The broker or salesperson shall be paid a commission based on his gross sales, if any, without deduction for taxes, which commission shall be directly related to sales or other output;
(3) The broker or salesperson shall not receive any remuneration related to the number of hours worked and shall not be treated as an employee with respect to such services for purposes of workers' compensation;
(4) The broker or salesperson shall be permitted to work any hours he chooses;
(5) The broker or salesperson shall be permitted to work out of his own home or the office of the person for whom services are performed;
(6) The broker or salesperson shall be free to engage in outside employment;
(7) The person for whom the services are performed may provide office facilities and supplies for the use of the broker or salesperson, but the broker or salesperson shall otherwise pay his own expenses, including, but not limited to, automobile, travel and entertainment expenses; and CT Page 9277
(8) The contract may be terminated by either party at any time upon notice given to the other.
Implicit is this interpretation is the principle that "[w]hen a statute is in derogation of common law or creates liability where none formerly existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." Spears v. Garcia, 263 Conn. 22, 28 (2003).
As the defendant Colonial argues, the common-law rule is that "an employer of an independent contractor, absent an act of negligence on its own part, is not liable to others for the negligent acts of the contractor." Ray v. Schneider, 16 Conn. App. 660, 663, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988). Section 20-312a should not be construed to create a new liability on real estate brokers for the conduct of an affiliated salesperson in personal injury actions in the absence of explicit statutory language providing for the same.
III AGENCY
The plaintiff next argues that there was a common-law agency existing between Murray and Colonial, and thus, Colonial has vicarious liability for the alleged negligence of Murray. Murray argues the plaintiff, was Colonial's employee and not an independent contractor, and Murray was acting within the scope of his employment when he struck the plaintiff with his automobile.
The existence of an agency relationship is a question of fact. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, CT Page 9266 374 A.2d 144 (1976); Cleaveland v. Gabriel, 149 Conn. 388, 394, 180 A.2d 749 (1962). The burden of proving agency is on the plaintiff; Botticello v. Stefanovicz, supra, 177 Conn. 22, 25-26; Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936); and it must be proven by a fair preponderance of the evidence. Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970); Iodice v. Rusnak, 143 Conn. 244, 247, 121 A.2d 275 (1956).
"Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Restatement (Second), 1 Agency § 1." (Internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 68 (1983). "Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Internal quotation marks omitted.) Id., 133. Moreover, "It is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the [agency relationship]." McDermott v. Calvary Baptist Church, 263 Conn. 378, 384 (2003), 819 A.2d 795; Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606, 799 A.2d 1027 (2002).
"In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer. See 1 Restatement (Second), Agency § 228, p. 504 (1958)." Harp v. King, 266 Conn. 747, 782-83 (2003).
An agent's authority may be actual or apparent. Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, supra, 260 Conn. 606-07. "Actual authority may be express or implied." Id., 607. "Implied authority is actual authority circumstantially proved. It is the authority which the principal intended his agent to possess . . . Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent." (Citation omitted; internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997).
"Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses . . . Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal . . . The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted; internal quotation marks omitted.) Gordon v. Tobias, supra, 262 Conn. 844, 849-51; quoting Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A.2d 333 (1993).
"In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer. See 1 Restatement (Second), Agency § 228, p. 504 (1958)." Harp v. King, 266 Conn. 747, 782-83 (2003).
From the standpoint of the plaintiff, the obvious benefit of establishing an agency relationship stems from the fact that under the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 839 (2003); Steibitz v. Mahoney, 144 Conn. 443, 447, 134 A.2d 71 (1957); see also, LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 258.
The defendant Colonial maintains that the plaintiff has failed to meet his burden of proof that Murray was acting as Colonial's agent at the time of the accident, as Murray's deposition testimony is inconsistent and unreliable as Murray was suffering memory loss and was confused about the events and sequences that occurred on October 3, 1996. The court disagrees.
While Murray may very well have been in the early stages of dementia, there is little about his testimony to dispute that he indeed was a real estate salesperson working at Colonial Properties, Inc. on October 3, 1996. Murray verbally confirmed this, and he offered his business card to the plaintiff to identify himself. He described that he would take the shortcut through the parking lot to avoid a traffic light, and he described the location of the offices of Colonial Properties, Inc. He also stated that he was "probably" on a trip either to or from a business call relating to commercial real estate business.
The defendant Colonial also argues that statements made by Murray at the scene or in his deposition testimony that he was on his way to or from a business call are inadmissable hearsay. Hearsay "means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Connecticut Code of Evidence § 8-1. The defendant has filed a motion in limine regarding the testimony of the plaintiff and Murray regarding Murray's statements that he was working for Colonial at the time of the accident. Colonial wants this testimony precluded. The defendant Colonial also argues that Murray's presenting a business card to the plaintiff at the scene is irrelevant and of little probative value, as the handing of the business card to the plaintiff was not for the purpose of soliciting business and was for purposes of identifying himself only. To imply from the presentment of the business card that Murray was in the course of his employment at the time of the accident would be speculative and unsubstantiated by the evidence. The court disagrees that it is inadmissable or irrelevant evidence.
The statements and actions of Murray at the scene were spontaneous. They followed a startling occurrence and they related to that occurrence. Murray had the opportunity to observe the occurrence, and his actions and utterances were caused by the excitement of the event. He was also confronted by the injured plaintiff, who demanded that Murray produce identification. These events and the several minutes that they occupied, negated an opportunity for deliberation and fabrication. The testimony of Murray contained in his deposition, the testimony of the plaintiff at trial, and the physical evidence of the accident are all consistent with Murray's actions and words at the scene.
Our Supreme Court has recognized that "irrespective of the hearsay declarant's availability, evidence admitted under a firmly rooted exception to the hearsay rule does not violate the federal constitution's guaranteed right to confront one's accusers." State v. Dupigney, 78 Conn. App. 111, 118-19, 826 A.2d 241 (2003); see also, State v. Damon, 214 Conn. 146, 159, 570 A.2d 700, cert. denied, 498 U.S. 819; 111 S.Ct. 65, 112 L.Ed.2d 40 (1990). "The unavailability of the declarant is not a prerequisite for the admission of a spontaneous utterance or declaration under the Connecticut rules of evidence and that this formulation of the exception to the hearsay rule is firmly rooted in Connecticut law." Id. at 119; See State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); see also Conn. Code Evid. § 8-3(2); State v. Westberry, 68 Conn. App. 622, 627, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002); C. Tait J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.1, p. 373.
"An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies." State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998)." The excited [or spontaneous] utterance exception is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant." State v. Kelly, 256 Conn. 23, 41-42, 770 A.2d 908 (2001); Conn. Code Evid. § 8-3(2); 2 B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988) § 97c, p. 949. "Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion." (Citation omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 766, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999). Our Supreme Court has stated that "[t]he ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation." (Emphasis added; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128, 763 A.2d 1 (2000); C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.17.3, p. 619.
State v. Arluk, 75 Conn. App. 181, 187-88, 815 A.2d 694 (2003).
The amount of time between the event and the statement is not dispositive; the trial judge must weigh all the material facts. State v. Stange, State v. Stange, supra, 212 Conn. 618. "Our Supreme Court has stated that the majority of the jurisdictions that have addressed the issue of the effect of the time interval between the startling occurrence and the making of the spontaneous utterance have recognized that an acceptable time interval cannot be specified. Each case must be decided on its particular circumstances. Id. For example, in Stange, the time period between the event and the statement was fifteen to thirty minutes. Id., 614-15; see also State v. Guess, 44 Conn. App. 790, 802, 692 A.2d 849 (1997) (forty-five minutes), aff'd, 244 Conn. 761, 715 A.2d 643 (1998); State v. Cayouette, 25 Conn. App. 384, 386-88, 594 A.2d 1020 (1991) (between ten, twenty-nine minutes)." State v. Arluk, supra, 75 Conn. App. 189-90.
In the present case, there was evidence before the court that only several minutes had elapsed from the time the defendant struck the plaintiff until he handed the plaintiff his business card; identified himself as a salesman for Colonial Properties; and had the conversation about "probably" being on a business call. Murray's actions and responses were made as a direct result of the plaintiff's demand as to Murray's identification. Given Murray's age and mental state as testified to by witnesses called by Colonial, there is little doubt to the court, that Murray was under stress and was excited, despite the fact that he was not shouting, crying or shaking. The fact that he was more concerned with moving his car than attending to the plaintiff who lay on the ground is an indication of stress, excitability and the confusion of the scene. Only several minutes passed before he presented his business card and exclaimed that he worked at Colonial Properties. Recent decisions have under certain circumstances expanded the acceptable time frame between an event and the spontaneous utterance to a significant period.
There can also be little doubt that Murray was authorized by Colonial to represent himself as a salesperson of Colonial, although his authority to represent himself as a "vice-president" is at issue. The court concludes that this evidence is admissible to establish agency between Murray and Colonial at the time of the accident and that Murray was working when he struck the plaintiff with his automobile. Richetelli's testimony, as well, supports the conclusion that Murray was his agent.
IV INDEPENDENT CONTRACTOR
"The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact." Latimer v. Administrator, Unemployment Compensation Act, 216 Conn. 237, 249, 579 A.2d 497 (1990). "It has long been established that the 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." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696-97 (1995) 651 A.2d 1286 (1995), quoting Latimer v. Administrator, supra, 216 Conn. 248; see also, Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); Panaro v. Electrolux Corp., 208 Conn. 589, 603, 545 A.2d 1086 (1988); F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 512, 427 A.2d 392 (1980); Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940); Aisenberg v. C.F. Adams Co. "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, that makes the difference between an independent contractor and a servant or agent." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 696-97; Latimer v. Administrator, supra, 248; Caraher v. Sears, Roebuck Co., 124 Conn. 409, 413-14, 200 A. 324 (1938). An independent contractor has been defined as "one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., supra, 639; Alexander v. R.A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912).
In the present case, the court finds that the defendant Colonial retained the right to control, and actually exerted control over, Murray, its real estate salesperson. Murray was required to follow office rules, regulations and procedures. Murray did business under Colonial's name and he used the company's logo on his business cards, business forms and documents. He could be terminated if he did not comply with requirements set forth in the Independent Contractor Agreement. Additionally, he could not engage in any non-Colonial real estate business or in any real estate related activities; and nor could he compete with Colonial. He had to "strictly observe" the most current operating procedures of Colonial and per the terms of the agreement with Colonial, his adherence to these procedures "is a material consideration for the execution of the agreement by Colonial." Murray had to abide by the dispute resolution terms set forth in the agreement or he could be terminated. The termination paragraph in the Independent Contractor's Agreement does not provide for any liability on Colonial's behalf but only liability and restrictions on Murray. "The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 696-97; Latimer v. Administrator, supra, 216 Conn. 249.
The defendant Colonial claims that Murray was an independent contractor because he received 1099 forms rather than W-2 forms for income tax purposes, and that he did not receive medical benefits or Workers' Compensation benefits. While these factors weigh in Colonial's favor, they are insufficient to persuade the court that Murray was not an employee. As noted, the terms of the Independent Contractor Agreement implies that Colonial, in fact had coverage for Workers' Compensation available and that Murray opted not to be covered.
The factors delineated above indicate that the right of the Colonial to control its employee Murray, far outweighs the factors that indicate an independent contractor relationship. See Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 639. The court concludes that Colonial had the right to control Murray, its employee.
As stated previously, the determination of the status of an individual as an independent contractor or employee is often difficult and is a question of fact. Robert C. Buell Co. v. Danaher, 127 Conn. 606, 610 (1941). It involves a consideration of the total employment situation and the economic realities of the work relationship rather than from formalistic labels, subjective intent, or a good-faith belief that an employer-employee relationship does not exist. Lawler v. Blazawski, Superior Court, judicial district of Tolland at Rockville, No. CV 94 0056909 S (Feb. 11, 1998, Hammer, J.T.R.), 21 Conn. L. Rptr. 383, citing Bonnette v. California Health Welfare Agency, 525 F. Sup. 128, 135 (N.D.Cal. 1981). Our Supreme Court reaffirmed its prior decision in Latimer v. Administrator, supra, 216 Conn. 251 (1990), that an employment relationship could be found to exist even in the face of a signed agreement that the parties were independent contractors. Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 694-95 (1995).
In Robert C. Buell Co. v. Danaher, supra, 127 Conn. 606, the Connecticut Supreme Court held that the trial judge could reasonably conclude that the salesmen were working in the brokers' business which depended on the method and manner in which the salesmen were doing their work, that it had the right to control their conduct and the power to enforce that right by holding over them the threat of discharge if they did not do their work to the satisfaction of the brokerage firm. Id. 612.
"The case law that defines the term `independent contractor' in the workers' compensation context is also of particular significance because, as has already been noted, General Statutes § 20-312b(1) requires that the broker-salesperson agreement include the provision that `[t]he broker or salesman, for purposes of workers' compensation, is engaged as an independent contractor associated with the person for whom services are performed . . .' Generally stated, the common law definition is that `[t]he independent contractor contracts to produce a given result by methods under his own control [while the] employee contracts to produce a given result, subject to the lawful orders and control of his employer in the means and methods used in that employment [and that he] is bound in some degree to the duty of service to the employer.'" Lawler v. Blazawski, supra; Aisenberg v. Adams, Co., Inc., supra, 95 Conn. 421.
"The test of the employment relationship is not whether there is in fact actual interference with the work that is being done, because it is the right to interfere, that makes the difference between an independent contractor and an employee." Lawler v. Blazawski, supra; Caraher v. Sears, Roebuck Co., supra, 124 Conn. 413. The fact that payment is made solely by way of commission rather than salary or wages and that the person doing the selling "could regulate his own hours of work is without significance [because his] pay depended upon the result of his sales [and the] particular hours he worked were unimportant to the employer, provided adequate sales were made." Aisenberg v. Adams Co., Inc., supra, 95 Conn. 423.
"When the performance of the services contracted for are unsatisfactory for any reason and the employer is free at any time to terminate the salesperson from its employment, such a right to terminate is a strong indication that the relation is one of employment because an independent contractor must be permitted to finish his contract in the absence of breach on his part." Aisenberg v. Adams Co., Inc., supra, 95 Conn. 423. "The term `independent contractor' presupposes the existence of a binding contract between the parties, for the breach of which a cause of action arises, and the most important factor in determining whether a person is an employee is the right of either party to terminate the relationship without liability." Lawler v. Blazawski, supra, Superior Court, judicial district of Tolland at Rockville, No. CV 94 0056909 S (Feb. 11, 1998, Hammer, J.T.R.), 21 Conn. L. Rptr. 383; Northeast Insurance Co. v. Soucy, 693 A.2d 1141, 1144 (Me. 1997).
The restrictions imposed upon real estate agents under Connecticut statutes and regulations must also be considered in determining whether their status is that of an employee of their broker, such as the statutory definition that a licensed real estate salesperson must be affiliated with, or employed by, a real estate broker; General Statutes § 20-311(2); and that when that person becomes associated with a different broker his or her license must be transferred to the new broker. General Statutes § 20-319a. Other restrictions include the fact that a licensed real estate agent can receive commissions only through the broker with whom he is affiliated, that unsold listings remain the property of the broker, and that the salesperson has no authority independent of the broker with whom he is affiliated to utilize essential information sources such as the multiple listing services, whose membership consists exclusively of, and is limited to, licensed real estate brokers. Lawler v. Blazawski, supra, Superior Court, judicial district of Tolland at Rockville, No. CV 94 0056909 S (Feb. 11, 1998, Hammer, J.T.R.), 21 Conn. L. Rptr. 383.
"Courts in other jurisdictions have held that similar statutory provisions governing real estate brokers and salespersons imply that the relationship is one of employer and employee and that the resolution of the issues raised in an action brought by a real estate agent against his former broker for the payment of commissions earned during his association with that broker are governed by principles of employer/employee relations rather than by the special rules applicable to brokers attempting to recover commissions from sellers." Id.; Calvo v. Calhoon, 559 P.2d 111, 113-14 (Alaska, 1977); Phillips v. JCM Development Corp., 666 P.2d 876, 881 (Utah 1983); see also Hughes v. Industrial Commission, 551 P.2d 962 (Ariz.App. 1976).
V CONCLUSION
In the present matter, the court finds that General Statutes § 20-312a is not applicable. However, by a preponderance of the evidence the plaintiff has sustained his burden of proof in establishing that on October 3, 1996, the defendant Murray was an employee of Colonial and not an independent contractor. Murray was Colonial's employee and agent at the time he struck the plaintiff pedestrian plaintiff Robert Alvine. The plaintiff has also established by a fair preponderance of the evidence that Murray was acting within the course and authority of his employment when he struck the plaintiff Alvine.
THE COURT
Arnold, J.