Opinion
No. CV 02 0068605
August 11, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS (#104')
On August 1, 2002, the plaintiffs, Richard Mead and Holly Mead (the Meads), commenced this action by service of process upon the defendants, Labby Road, LLC (Labby Road), d/b/a JJ Construction, Richard Desrochers, Richard Morin and Boguslawa Morin (the Morins). The Meads filed an eight-count complaint against the defendants. The complaint alleges that Richard Mead, who was employed by Labby Road, was working on the construction of a drainage ditch, located on the property of the Morins, when it collapsed on him due to the defendants' negligence and, subsequently, he sustained serious injuries.
Counts one and two, as to Richard Mead, allege causes of action for negligence pursuant to General Statutes § 31-293 against Labby Road and Richard Desrochers, respectively. Counts three and four, as to Richard Mead, allege causes of action for negligence against the Morins. Counts five through eight, as to Holly Mead, allege causes of action for a loss of consortium against Labby Road, Richard Desrochers and the Morins, respectively.
On November 1, 2002, Labby Road and Richard Desrochers filed a motion to dismiss the action as to them on the ground that the court lacks subject matter jurisdiction because the Meads' claims are bared by the exclusivity provision pursuant to General Statutes § 31-284. On December 5, 2002, the Meads filed a memorandum of law in opposition to the motion to dismiss. On December 10, 2002, the defendants filed a reply memorandum of law in response to the plaintiffs' memorandum of law in opposition. On April 16, 2003, the plaintiffs filed a sur-reply memorandum of law in response to the defendants' reply memorandum.
For the purposes of this decision, the defendants, Labby Road and Richard Desrochers, will be collectively referred to as "the defendants." The remaining defendants, the Morins, are not parties to the motion to dismiss presently before this court.
DISCUSSION
The defendants argue that § 31-284 of the Workers' Compensation Act (act) provides the exclusive remedy upon which Richard Mead can recover from the defendants for the injuries he sustained in the workplace. It is the defendants' contention that, pursuant to § 31-293, they are not proper third parties who can be held liable for Richard Mead's injuries. Finally, the defendants argue that Richard Mead is barred from seeking additional compensation for his workplace injuries under the exclusivity provision pursuant to § 31-284 because the defendants paid him workers' compensation benefits as provided for under the act.
In opposition, the plaintiffs argue that § 31-284 is inapplicable in the present case because the defendants are not protected under the act. Specifically, the plaintiffs argue that the defendants were not in compliance with § 31-284 at the time Richard Mead sustained his injuries. The plaintiffs contend that they properly brought this action against the defendants under § 31-284 (b) because the defendants failed to maintain workers' compensation insurance. The plaintiffs further argue that because the defendants were not in compliance with § 31-284 (b), they are not protected under the exclusivity provision.
In reply, the defendants argue that their failure to maintain workers' compensation insurance, as required under § 31-284, is not applicable to employers who compensate their employees despite the failure of maintaining the requisite insurance. The defendants further argue that they made payments to Richard Mead as required under the voluntary agreement provided by the workers' compensation commission and paid a $1000 fine due to their lack of compliance with § 31-284 (b). The defendants contend that if the court denies their motion to dismiss it would be "creating a precedent whereby employers who, by inadvertent omission, do not comply with the requirement of obtaining workers' compensation insurance, but pay their employees compensation as if they had insurance, are substantially penalized three times over."
In response, the plaintiffs argue that Richard Mead was not fully compensated for his injuries as he would have been entitled to if the defendants had complied with the act. The plaintiffs argue that Richard Mead was not reimbursed for mileage, co-pays and that he failed to receive temporary total disability benefits for a specified period of time. Furthermore, the plaintiffs contend that the defendants' argument that they compensated Richard Mead for his injuries, despite their failure to carry insurance as required under the act, creates a loophole whereby employers could choose not to maintain the required insurance but compensate employees in the event they get injured while still enjoying the protections of the exclusivity provision. The plaintiffs conclude that if the defendants had carried insurance as required under the act then Richard Mead would have been fully compensated for his injuries.
In Grant v. Bassman, 221 Conn. 465, 604 A.2d 814 (1992), our Supreme Court determined that the defendant's claim that a cause of action is barred by the exclusivity provision as provided under the act should have been pleaded as a special defense and not raised by way of the motion to dismiss. "[A] claim that an injured plaintiff has made an exclusive election of workers' compensation is properly raised by a special defense. 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." (Citations omitted; internal quotation marks omitted.) Id., 472-73.
Several Superior Courts have followed the reasoning under Grant and determined that the motion to dismiss is the improper method of challenging a cause of action based on the exclusivity provision as set forth in the act. See Mello v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0156451 (December 18, 2000, Rogers, J.) ("In light of the clear precedent set forth in Grant v. Bassman . . . the defendant's motion to dismiss is not the proper procedural vehicle for challenging the plaintiff's complaint on the ground that the exclusive remedy provision bars the action"); Hubbard v. Powell, Superior Court, judicial district of New London-Norwich at Norwich, Docket No. CV 00 0119343 (June 29, 2000, Dyer, J.) ( 27 Conn.L.Rptr. 453) ("the defendant's claim that the plaintiff's action is barred by the operation of the exclusivity provision of General Statutes § 31-284 (a) is not properly raised by a motion to dismiss"); Walls v. OPF Schroder Trust, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0164524 (October 14, 1998, Mintz, J.) ( 23 Conn.L.Rptr. 199).
Thus, based under the reasoning stated in Grant, the court finds that the procedural vehicle by which defendants have brought their claim is improper. This claim should have been pleaded as a special defense and not by way of a motion to dismiss. Accordingly, the defendants' motion to dismiss is denied.
Foley, J.