Opinion
DBDCV186027325S
02-07-2019
Patricia FULLER v. WESTERN CONNECTICUT HEALTH NETWORK, INC. dba The Danbury Hospital
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant Western Connecticut Health Network, Inc. d/b/a Danbury Hospital has objected to the motion of The Farmington Company ("Farmington") to intervene in this action on the ground that Farmington is not entitled to join this action to recover benefits paid to an injured employee under South Carolina law because C.G.S. § 31-293 is applicable only to Connecticut employers obliged to pay benefits under the Connecticut Workmen’s Compensation Act. For the reasons stated below, the motion to intervene is granted and the objection is overruled.
The Court declines to conclude that the objection was untimely. On November 9, 2018, Farmington filed its motion to intervene based on South Carolina law. On November 26, 2018, the Court ordered the movant to submit authority for intervention on or before January 11, 2019. On December 23, 2018, movant complied with the order. The objection was filed on January 18, 2019, less than thirty days after movant filed its response to the court’s request for authority, which was timely under the circumstances.
A number of courts have held that employers who paid workers’ compensation benefits under the law of other states could not intervene in personal injury actions in Connecticut because intervention under C.G.S. § 31-293 is limited to employers who paid benefits under the Connecticut Workers’ Compensation Act. See e.g., Greene v. Verven, 203 F.Supp. 607, 611 (D.Conn. 1962); See also Stoker v. Marriott Corp., 1994 WL 43551 *1 (Conn.Super. 1994) (Corradino, J.) (motion to dismiss granted); Quality Distribution Transplastics, LLC v. Central Construction Industries, LLC, 2005 WL 1023078 *2 (Conn.Super. 2005) (Riley, J.); Konner v. Bajra, 2006 WL 2556433 *3 (Conn.Super. 2006) (Jennings, J.). See generally Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537 (1990). If Farmington was relying on an intervention right under C.G.S. § 31-293, the motion to intervene would be denied and the objection sustained.
However, Farmington’s motion to intervene is based on its recovery and lien rights on the proceeds of a third-party action under South Carolina law, and the motion to intervene does not cite the intervention right granted under C.G.S. § 31-293, but invokes Connecticut law on permissive intervention under the four-part test established by Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 663-64 (2013): "In BNY Western Trust v. Roman, [ 295 Conn. 194, 204 n.8 (2010) ], ... this court discussed the two types of intervention, noting that ‘[i]ntervention as of right provides a legal right to be a party to the proceeding that may not be properly denied by the exercise of judicial discretion. Permissive intervention means that, although the person may not have the legal right to intervene, the court may, in its discretion, permit him or her to intervene, depending on the circumstances. [...] [p]ermissive intervention ... is entrusted to the trial court’s discretion ... [and] depends on a balancing of factors ... In deciding whether to grant a request for permissive intervention, a trial court should consider: the timeliness of the intervention; the [prospective] intervenor’s interest in the controversy; the adequacy of representation of such interests by other parties; the delay in the proceedings or other prejudice to the existing parties; the intervention may cause; and the necessity for or value of the intervention in resolving the controversy ... With respect to the propriety of the trial court’s balancing of these factors, we have stated that [a] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion ... A party challenging a ruling on permissive intervention bear[s] the heavy burden of demonstrating an abuse of ... discretion.’" 310 Conn. at 663-64 (citation omitted).
In Valdovinos v. Ed Setterberg Home Improvement, Inc., 2015 WL 9911482 *2-3 (Conn.Super. 2015) (Povodator, J.), Judge Povodator recognized that permissive intervention might be allowed to protect a lien right on proceeds of a third-party action to recover benefits paid under another state’s workers’ compensation law if the movant satisfied the four-part test announced in Austin-Casares, 310 Conn. at 648.
Judge Povodator also noted "defendants have not identified any statute or case law indicating that a Connecticut court is not allowed to permit a party to assert such a claim (permissively) ..." Valdovinos, 2015 WL 9911481 *4 (emphasis in original). C.G.S. § 31-293 does not prohibit intervention by an employer seeking to recover benefits paid under another state’s program, it merely grants an employer intervention status to recoup benefits paid to an injured employee under Connecticut law. I agree that permissive intervention is available in the appropriate case.
The Court disagrees with the decisions which read C.G.S. § 31-293 as if it affirmatively prohibited claims to recover benefits paid to employees under another state’s workers’ compensation act where the substantive law of that state granted such right to recovery and a lien against third-party payouts. See e.g., Quality Distribution Transplastics, LLC, 2005 WL 1023078 *2 ; Stoker, 1994 WL 43551 *1 .
In Valdovinos Judge Povodator denied a motion to dismiss a counterclaim seeking to recover benefits paid under New York law filed by a defendant already in the case. He did not decide a motion to intervene but indicated that "the ‘intervening’ complaint asserts a claim that would appear to be permissible under New York law and therefore seemingly can be asserted (permissively) in this case." 2015 WL 9911481 *4. Note in Stoker, 1994 WL 43551 *1, Judge Corradino observed he was deciding a motion to dismiss not a motion to intervene "based on some theory claiming that [the putative intervenor] may enforce rights granted to it by the laws of a foreign jurisdiction in the Connecticut courts."
South Carolina’s law affords an employer a right to recover workers’ compensation benefits paid and a lien over proceeds in a third-party action. Code 1976 § 42-1-560. If this action were brought in South Carolina the employer presumably could intervene in said action under Rule 24 of the South Carolina Rules of Civil Procedure.
C.G.S. § 52-102 and Practice Book § 9-6 permit the permissive intervention of interested parties based on the allegations set forth in the motion.
"For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion ... to intervene and to the proposed complaint or defense in intervention, and ... we accept the allegations in those pleadings as true. The question on a [motion] to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on [a] motion to intervene, at least in the absence of sham, frivolity, and other similar objections ... Thus, neither testimony nor other evidence is required to justify intervention, and [a prospective] intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the [prospective] intervenor has a direct and immediate interest that will be affected by the judgment.’" Austin-Casares, 310 Conn. at 648-49 (citations omitted). Taking into consideration and balancing the factors for permissive intervention outlined in Austin-Casares, 310 Conn. at 664, the Court will exercise its discretion to grant Farmington’s motion to intervene as co-plaintiff. The movant has represented it has paid and will pay workers’ compensation benefits under the South Carolina Workers’ Compensation Act to plaintiff for the injuries suffered by her as its employee in the course of her employment which are the subject of this action and covered by its workers’ compensation insurer. The motion to intervene is timely. No party adequately represents the prospective intervenor’s interests in recovery of benefits paid to plaintiff or enforcing its lien to any proceeds from the action. The intervention will not unduly delay or prejudice the other parties. The intervention of Farmington will enable final resolution of all controversies between the parties and determine rights to receive any proceeds of the suit.