Opinion
No. CV 02-0467452S
July 11, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The defendant has filed a motion for summary judgment pursuant to Practice Book § 17-44, claiming that the plaintiff's action is precluded by the Workers' Compensation exclusivity provision, more fully set forth in General Statutes § 31-284 (a), which provides in relevant 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 . . .
On or about July 28, 2000, the plaintiff was injured in the course of his employment, while closing a door at Kentucky Fried Chicken, located at 722 East Main Street, Meriden, Connecticut. The plaintiff alleges that he caught his left index finger in a steel fire door, and that in doing so, the tip of his finger was severed. The plaintiff has received workers' compensation benefits and has brought this suit against the defendant Robert Fulmer, alleging negligence by the defendant. Fulmer was the owner of the premises at 722 East Main Street at the time the plaintiff sustained his injuries. Additionally, Fulmer was the one hundred percent shareholder and President of Kentucky Fried Chicken of Meriden, by whom the plaintiff was employed. Said corporate entity operated the franchise location at 722 East Main Street, Meriden, Connecticut. In his capacity as the one hundred percent shareholder and President of the corporation, the defendant, by way of sworn affidavit, states that he had the authority to hire, fire and directly control the work activities of his employee, the plaintiff, Lynon Milton. The defendant argues, therefore, that the plaintiff-employee's exclusive remedy is limited to a recovery under the Workers' Compensation Act.
The plaintiff concedes that typically workers' compensation is the exclusive remedy for personal injuries arising out of and in the course of employment pursuant to § 31-284 (a). See also Suarez v. Dickmont Plastics Corporation, 30 Conn. App. 630, 633 (1993). The plaintiff, however, argues that there are exceptions to this rule. One exception exists where there is proof of an independent relationship between the defendant third party and the employer. Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989). Another exception is for personal injuries caused by the negligence of a third-party tortfeasor. It is this latter exception that the plaintiff relies upon in bringing the instant action against the defendant Fulmer.
The plaintiff has submitted documentary exhibits indicating that the liability insurance policy for the subject premises was issued to Fulmer and rent checks were paid to Fulmer. The premises were managed and maintained by Salvatore Ruscitti, Vice President and General Manager of Colonel Management Corporation, whose mailing address was Wallingford, Connecticut. Payroll checks issued to the plaintiff were drawn on an account of Colonel Management Corporation.
The plaintiff contends that Fulmer was not the plaintiff's employer at the time of the injury. It is claimed that the defendant Fulmer "put up a corporate veil to shield himself from personal liability for harm caused by agents, servants and employees of his Kentucky Fried Chicken restaurants," and that the defendant should not be allowed to "pierce that corporate veil now that it is advantageous for him to do so."
I
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). Summary judgment must be granted where the claim is barred as a matter of law. Doty v. Mucci, 238 Conn. 800, 805, 679 A.2d 945 (1996).
II
Section 31-275 (10) of the Workers' Compensation Act defines employer as "any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . ." Under the act's exclusivity provision, "[a]n 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 sub-section (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 other than rights and claims given by this chapter . . ." Doe v. Yale University, 252 Conn. 641, 668, 748 A.2d 834 (2000).
"Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the [act] . . . General Statutes § 31-275 et seq.; is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). 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 . . . Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381, 698 A.2d 859 (1997). The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation. Taylor v. St. Paul's Universalist Church, 109 Conn. 737, 147 A. 671 . . . Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 378-79, 731 A.2d 294 (1999); Doe v. Yale University, supra at 672.
"The purpose of the [workers'] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. Panaro v. Electrolux Corp., [ 208 Conn. 589, 598-99, 545 A.2d 1086 (1988)]; Jett v. Dunlap, [ 179 Conn. 215, 217, 425 A.2d 1263 (1979)]. The [act] compromise[s] an employee's right to a common law tort action for work-related injuries in return for relatively quick and certain compensation. Panaro v. Electrolux Corp. supra, 599; see Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 446, 705 A.2d 1012 (1997); Dodd v. Middlesex Mutual Assurance Co., [ supra, 242 Conn. 381]; Mingachos v. CBS, Inc., [ supra, 196 Conn. 97]." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 799. Doe v. Yale University, supra at 675-76.
"The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act . . . Vanzant v. Hall, 219 Conn. 674, 678, 594 A.2d 967 (1991); Castro v. Viera, [ 207 Conn. 420, 433, 541 A.2d 1216 (1988)]." Dowling v. Slotnik, supra, 244 Conn. 800-01. Just as a claimant may invoke the act's remedies only if the claimant satisfies the jurisdictional requirement of an employee as set forth in § 31-275 (9); Dowling v. Slotnik, supra, 800-01; Kinney v. State, 213 Conn. 54, 60, 566 A.2d 670 (1989); only those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in § 31-275 (10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee. Doe v. Yale University, supra at 680.
Whether a defendant is an employer under the act is, therefore, a question of the specific defendant's degree of control over the alleged employee. "The `right to control' test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has `the right to control the means and methods' used by the worker in the performance of his or her job. Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996); Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); Ross v. Post Publishing Co., [ 129 Conn. 564, 567, 29 A.2d 768 (1943)]." Hanson v. Transportation General, Inc., supra, 245 Conn. 620. "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 . . . Latimer v. Administrator, [ 216 Conn. 237, 248, 579 A.2d 497 (1990)]; Caraher v. Sears, Roebuck Co., 124 Conn. 409, 413-14, 200 A. 324 (1938)." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995). Doe v. Yale University, supra at 680-81.
The defendant relies upon Ferrara v. Willard Road, LLC., Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV 98-0167924 (September 12, 2001, Lewis, J.T.R.), and Owens v. A. Anastasio Sons Trucking Co., Superior Court, judicial district of New Haven at New Haven, No. CV 99-04213675 (June 30, 2000, Alander, J.), for the arguments that the defendant's ownership of one hundred percent of the corporate stock and his position as President, made him the defendant's employer and that as such, the defendant possessed the right of general control over the plaintiff.
Ferrara was a matter where the defendant had filed a special defense claiming that the plaintiff's action was barred by the Workers' Compensation Act's exclusivity provision. The plaintiff filed a motion to strike the special defense, and that motion was denied due to the fact that the defendant had a five percent ownership interest in the defendant's employer. The defendant was also the owner of the premises where the plaintiff fell. The court found that the claimed five percent ownership interest was sufficient to allow the special defense to survive to trial on the issue that the defendant was an employer of the plaintiff.
In Owens v. A. Anastacio Sons Trucking Co., supra, the plaintiff was a truck driver employed by Staffing Services, an entity that managed the personnel of the defendant trucking company. The plaintiff was injured while driving a truck. The plaintiff sued the trucking company on the theory that the trucking company was a third party and not his employer. The defendant trucking company filed a motion for summary judgment based on the exclusivity provision of the Workers' Compensation Act. The court found that the defendant trucking company possessed the right of general control over the plaintiff's services and granted the motion for summary judgment.
There appears to be no factual dispute that the defendant was the sole shareholder of the corporate entity known as Kentucky Fried Chicken of Meriden. The plaintiff has, however, submitted documentary evidence in support of his opposition to the motion for summary judgment, indicating that the plaintiff was employed by Kentucky Fried Chicken of West Haven, Inc. and that his paychecks were drawn on the Colonel Management Corporation. The defendant has not submitted any documentation regarding the defendant's ownership interests in these corporate entities. There is a genuine issue of material fact as to what is the extent the specific defendant's degree of control over the plaintiff-employee in this action.
"Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court but, if honest and reasonable persons could fairly reach different conclusions on the question, then the issue should properly go to the jury for their determination." Darling v. Burrone Bros., Inc., 162 Conn. 187, 192 (1972); Owens v. A. Anastacio Sons Trucking Co., supra.
Accordingly, for the reasons set forth herein, the defendant's motion for summary judgment is denied.
By the Court: Arnold, J.