Opinion
No. HHB CV-09-5014354 S
December 3, 2010
MEMORANDUM OF DECISION ON INTERVENING PLAINTIFF'S MOTION TO STRIKE
FACTS
The plaintiff, Donald Marut, is an employee of intervening plaintiff Essex Machine Tool Services, LLC ["Essex"]. On September 14, 2007, a Casco Bay Transportation ["Casco Bay"] truck delivered a piece of machinery to Essex. The delivery of the machinery was attended by Michael Ferrara, sales manager of defendant M. Ferrara Sons ["Ferrara"], which had an equal share of interest in the machinery with Essex.
Marut alleges he was struck by a pipe that was used in unloading the machinery. Marut brought an action against Ferrara claiming Ferrara was responsible for the negligent use of a chain and the pipe that struck him, that the chain and pipe were not secured properly and that Marut was not advised of the danger. Ferrara filed an apportionment complaint against Casco Bay. Essex intervened to recover workers' compensation benefits paid to Marut. Ferrara filed a counterclaim against Essex.
Essex now moves to strike the counterclaim, stating that it is legally insufficient, in that Essex enjoys immunity pursuant to General Statutes § 31-284(a) and because Ferrara has failed to allege an independent legal relationship between Ferrara and Essex.
LEGAL STANDARD
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
The role of the trial court in ruling on a motion to strike is "to examine the [counterclaim], construed in favor of the [counterclaimant], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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).
DISCUSSION I. Exclusive Remedy Provision of the Worker's Compensation Act
Connecticut General Statutes § 31-284(a) states, in pertinent part:
(a) 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 . . . 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 . . . sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.
The intervening plaintiff, Essex, claims that § 31-284(a) precludes the defendant Ferrara's counterclaim. Essex argues that, if Ferrara is successful, Essex would, in effect, be paying damages for its employee's personal injuries outside of the workers' compensation statute, even though it is compliant with the provisions of the statute and is entitled to its protection. Ferrara disagrees.
The workers' compensation statute, § 31-284(a), is a statute of trade-offs. "Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the Workers' Compensation Act . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. 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." (internal citations and quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Company, supra at 381.
Ferrara argues that the exclusive remedy provided by § 31-284(a) is not a bar to recovery by a third party when the third party can establish that the employer breached an independent duty to the third party. In other words, Ferrara claims it can seek indemnification as a third party from Essex because Essex had an independent legal relationship with Ferrara.
Any analysis of the exclusive remedy provision of the workers' compensation act must begin with Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989). In Ferryman, the plaintiff's decedent was electrocuted when he entered City of Groton's electrical substation to cut grass and remove weeds as an employee of Electric Boat. Groton filed a third party complaint against Electric Boat, an alleged co-owner of the substation, as well as an Electric Boat employee, Charlie R. Franklin. Electric Boat and Franklin moved to strike the complaint, which was granted, resulting in an appeal.
The Supreme Court, citing Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 411-12, 207 A.2d 732 (1965), first noted that there is no right of indemnity or contribution between joint tortfeasors except when one of the tortfeasors is in control of the situation and that tortfeasor's negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong. Ferryman at 142-43. "We have permitted recovery even absent a finding of an express or implied agreement as between the two tortfeasors to exercise reasonable care." (citation omitted.) Id. at 143.
As Essex is asserting in the present action, Electric Boat and Franklin claimed that the exclusive remedy provisions of the workers' compensation statute insulated them from the indemnification claim and that Electric Boat could end up paying more than the act required. Id. The court held that, where there is' an independent, legal duty owed by one tortfeasor to another, recovery was permitted even when the injured party is an employee of the first tortfeasor. This requires more than the active/passive relationship set forth in Kaplan v. Merberg Wrecking Corporation. The court in Ferryman found "sufficient other allegations in the third party complaint to establish the required independent relationship between Electric Boat and Groton." Id. at 145.
Returning to the present action, based upon Ferryman, it appears that, properly pleaded, Ferrara can maintain an action against Essex despite the exclusive remedy provisions of the workers' compensation statute, General Statutes § 31-844(a).
II. Independent Legal Relationship
The next issue is whether the counterclaimant, Ferrara, has sufficiently. alleged an independent legal relationship between itself and Essex. In this analysis, the court returns to Ferryman.
When viewed in the light most favorable to the pleader, as required in addressing a motion to strike; Benson v. Housing Authority, [ 145 Conn. 196, 199, 140 A.2d 320 (1958)]; the complaint discloses the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy provisions of 31-284. "`What is necessarily implied need not be expressly alleged.' Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 193, 128 A.2d 540 (1956) . . ." Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983).
Since the allegations of the third party complaint were facially sufficient to establish an independent relationship between Groton and Electric Boat and Franklin, a relationship that goes beyond the active/passive negligence relationship found in Kaplan v. Merberg Wrecking Corporation, supra, we conclude that the trial court erred in striking the third party complaint.
Our conclusion that General Statutes § 31-284 does not necessarily furnish the exclusive remedy against employers in the context of negligence actions, and that indemnification is possible under appropriate circumstances, is supported by the fact that the legislature has chosen not to permit indemnification in the related field of product liability. General Statutes § 52-572r(d) provides: "In any product liability claim for personal injury or death arising out of and in the course of employment . . . brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability. (Emphasis added.) Had the legislature intended to provide the same protection to employers in the negligence context, it could have done so expressly and with equal precision and clarity.
Ferryman at 146-47.
In review of the defendant Ferrara's counterclaim against the intervening plaintiff, Essex, Ferrara asserts Kaplan v. Merberg Wrecking Corporation active/passive negligence indemnity claims against Essex. Ferrara alleges in ¶ 5 that Ferrara and Essex were joint owners of the machinery being unloaded; the machinery was under the control of Essex to the exclusion of Ferrara; and the pipe was owned by Essex. In ¶ 6 of the counterclaim, Ferrara alleges Essex controlled the unloading of the machinery to the exclusion of Ferrara. In ¶ 7, Ferrara alleges it had no knowledge of the conduct of Essex, had no reason to know of it and could reasonably rely on Essex to act with due care. In ¶ 8, Ferrara alleges, "Essex, as a co-owner of the machinery, breached its duty of care to Ferrara."
Keeping in mind the court's obligation to construe the counterclaim in the manner most favorable to sustaining its legal sufficiency, American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, the court finds that Ferrara has alleged a co-owner relationship in addition to the active/passive negligence alleged. This meets the "independent relationship" requirement set forth in Ferryman sufficient to preclude the operation of the exclusive remedy provisions of General Statutes § 31-284. Ferryman, supra at 146.
CONCLUSION
The intervening plaintiff Essex's motion to strike is denied.