Opinion
No. CV02 0398595 S
December 14, 2006
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #154
The intervening plaintiff/apportionment defendant, Greenwich Association of Retarded Citizens, Inc. (Greenwich) has moved for summary judgment as to the Second Count of the apportionment plaintiff Griffin Ford, Inc.'s (Griffin) apportionment complaint dated April 25, 2003. Greenwich claims that Griffin cannot as a matter of law and fact state a cause of action that can be heard by the court in that Griffin's apportionment complaint is barred because Greenwich, as the plaintiff's employer, is immune under the exclusive remedy provisions of the Workers' Compensation Act, General Statutes § 31-248(a).
General Statutes § 31-284(a) 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 . . . but an employer shall secure compensation for his employees as provided under this chapter . . . All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury . . . are abolished other than rights and claims given by this chapter . . ."
The apportionment plaintiff, Griffin, has objected to the motion for summary judgment, arguing that the proper mechanism to challenge the legal sufficiency of a pleading is by way of a motion to strike and as Greenwich has already filed an answer to the apportionment complaint, it has waived its right to challenge the legal sufficiency of the complaint by way of a motion to strike.
Practice Book § 10-39 regarding a Motion to Strike reads in relevant part as follows:
(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, . . . that party may do so by filing a motion to strike the contested pleading or part thereof.
I Summary of Complaint and Apportionment Complaint
On or about August 21, 2002, Catherine Parker was driving a vehicle leased to her employer, Greenwich, when the brakes of said vehicle failed causing her to collide with another vehicle in front of her. By way of her complaint against Griffin Ford, Inc., dated November 25, 2002, Parker, alleged that the leased vehicle, assigned to her for her use by her employer, Greenwich, was taken to Griffin Ford for service on the brakes on August 5, 2002. She further alleges that the brakes were then purportedly repaired by the defendant Griffin Ford when, in fact, they were not. As a result of the accident on August 21, 2002, Parker claims to have suffered personal injuries and damages. She alleges that Griffin Ford was negligent in that the collision was caused by the failure of the brake system in that Griffin through its employees failed to properly repair or replace the damaged brake cylinder with a brake cylinder that was "fit for use on the road."
Thereafter, Parker's employer, Greenwich Association for Retarded, moved to intervene, stating that it had become obligated to pay workers' compensation benefits to Parker. The motion to intervene, seeking reimbursement for any benefits paid to Parker, was granted on January 6, 2003. (Thim, J.).
Griffin Ford then filed a two-count apportionment complaint naming the Ford Motor Company and Greenwich, Parker's employer, as apportionment defendants. In the second count directed at Greenwich, Griffin alleges that Greenwich was negligent in that:
a. Through its employees or agents, it negligently failed to repair the subject brakes although it knew or should have known that said repair was necessary;
b. It allowed said vehicle to be operated by the plaintiff when through it employees or agents it knew or should have known of the potential danger;
c. It allowed its employees to drive a vehicle not safe for public travel;
d. It failed to warn the plaintiff (Parker) of the condition of the vehicle.
Griffin seeks an apportionment of liability pursuant to General Statutes § 52-572h, as against Greenwich, for the percentage of its negligence that contributed to proximately causing the plaintiff's (Parker's) damages.
II Summary Judgment and Motion to Strike
First, the court addresses whether a motion for summary judgment is the proper mechanism to adjudicate the legal sufficiency of the second count of Griffin's apportionment complaint directed toward Greenwich. Griffin contends that Greenwich's argument in its motion for summary judgment attacked the apportionment complaint's legal sufficiency rather than the facts bearing on the counts that pertain to it. Griffin further argues that "[t]he legal sufficiency of pleadings must be addressed in a request to revise or motion to strike" rather than in a motion for summary judgment. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts . . ." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006); Reardon v. Windswept Farm, LLC, 280 Conn. 153, 158 (2006).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such issue. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts.'" (Citations omitted.) Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 601, 677 A.2d 10 (1996); see also Home Insurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1026 (1995); Columbia Federal Savings Bank v. International Site Consultants, 40 Conn.App. 64, 72, 669 A.2d 594, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996).
"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). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, morever, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n 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).
Generally, a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test the presence of contested factual issues." Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 204, 878 A.2d 347 (2005); Burke v. Avitabile, 32 Conn.App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). However, courts, on occasion, have taken exception to this general rule and allowed parties procedural latitude to use a motion for summary judgment to test the legal sufficiency of the pleadings. See, Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 206 n. 1; See also, Pane v. Danbury, 267 Conn. 669, 674 n. 7, 841 A.2d 684 (2004); Truglio v. Hayes Construction Co., 66 Conn.App. 681, 686-89, 785 A.2d 1153 (2001); but see Gaudino v. East Hartford, 87 Conn.App. 353, 357, 865 A.2d 470 (2005).
The apportionment defendant Greenwich's motion for summary judgment alleges that Griffin's apportionment complaint as to Greenwich is barred because Greenwich, as the employer of the injured plaintiff Parker, is immune under the exclusive remedy provisions of the Workers' Compensation Act, General Statutes § 31-284(a). Greenwich, however, does not address in its memorandum of law or oral argument Griffin's position that there is a genuine issue of material fact as whether Greenwich's alleged actions in allowing its employee to drive the "imminently dangerous" subject vehicle with full knowledge of its faulty braking system created a dangerous condition that made its employee's injuries certain to occur.
Our Supreme Court has interpreted the exclusivity provision of General Statutes § 31-284(a) "as a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994). Griffin in its memorandum of law does make the alternative argument, that in the event that the court determines that a motion for summary judgment is proper, there is a genuine issue of material fact regarding whether the actions of Greenwich, as alleged, qualify for the narrow exception to the exclusivity provision of General Statutes § 31-248(a).
"There is a substantial difference between a motion for summary judgment and a motion to strike [or a request to revise]. The granting of a motion for summary judgment puts the plaintiff out of court . . . The granting of a motion to strike [or a request to revise] allows the plaintiff to replead his or her case." (Citation omitted.) Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 205, quoting, Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n. 3, 727 A.2d 204 (1999) (Berdon, J., concurring and dissenting). As noted, Greenwich has waived its right to file a motion to strike by its filing of an answer to Griffin's apportionment complaint. However, the court finds that Griffin is not prejudiced by its inability to replead because even if a motion to strike had been filed and was granted and Griffin had an opportunity to replead, the facts could not be altered to give rise to a cause of action under the exception to the exclusivity provision of § 31-248(a) of the Workers' Compensation Act. For reasons discussed below, the court finds that there is a lack of factual allegations pertaining to Greenwich's liability and this accordingly leaves the Second Count of Griffin's apportionment complaint void of legally sufficient allegations. Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 204. The court, recognizes that normally the legal sufficiency of pleadings would be raised in a request to revise or a motion to strike, nonetheless, the court has determined on the basis of the facts alleged and evidence submitted that a decision on the motion for summary judgment is proper in this matter. Id.
In this case, the facts alleged by Griffin and the evidence presented by the parties do not give rise to a cause of action. In reviewing the facts and evidence presented to the court, the court finds no genuine issue as to any material fact. The moving party, Greenwich, is entitled to summary judgment on the second count of the apportionment complaint as a matter of law.
III Discussion
Greenwich intervened in its employee Parker's action against Griffin Ford, Inc. solely pursuant to General Statutes § 31-29(a) in order to seek reimbursement for the workers' compensation payments that it was required to make to the plaintiff Parker. Pursuant to the exclusivity provision of the Workers' Compensation Act; General Statutes § 31-284(a) Parker could not sue its employer Greenwich for any of her injuries. In Barry v. Quality Steel Products, Inc., 280 Conn. 1, 14-15 (2006), our Supreme Court also determined that an employer who has intervened to recoup workers' compensation benefits paid to a plaintiff-employee is not a party against whom proportional liability may be assigned under General Statutes § 52-572o. Id. CT Page 22954
"To include such an employer in the general scheme of allocation of responsibility would be wholly inconsistent with the employer's immunity from suit by its employee under the Workers' Compensation Act and with the employer's limited role as intervenor to recoup the payments it is required by that act to make to its employee. Such an employer could not be liable to the plaintiff on the basis of joint and several liability as a joint tortfeasor, because of the exclusivity provision in the Workers' Compensation Act. Furthermore, to include such an employer as a "party" for purposes of apportioning liability pursuant to § 52-572o would undermine the purpose of allowing contribution among the liable parties, because, based on that same principle of exclusivity, such an employer could not be required to contribute to a third party's payment of the plaintiff's damages. Put another way, to consider the plaintiffs' employer as a "party" for purposes of apportioning liability among defendants under § 52-572o, as the defendants argue, would in effect either deprive the plaintiffs of the full amount of their net award or strip the employer of its bargained for exclusivity under the Workers' Compensation Act." Id. at 14-15.
Sec. 31-293. Liability of third persons to employer and employee reads in relevant part, as follows:
(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee . . .
Griffin, in the second count of its apportionment complaint, claims that the facts alleged and the evidence submitted to the court are legally sufficient to support a claim that Greenwich intentionally created a dangerous condition that made its employee's injuries certain to occur, and thus, has satisfied the intentional tort exception to § 31-284(a) of the Workers' Compensation Act, as articulated in Suarez v. Dickmont Plastics Corp. 229 Conn. 99, 109-10, 639 A.2d 507 (1994) (Suarez I), and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997) (Suarez II).
"Section 31-284(a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury. An exception to this general rule of exclusivity exists when a plaintiff can establish an intentional tort claim by demonstrating that his employer either: (1) "actually intended to injure [the employee] (actual intent standard)"; or (2) "intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard)." (Emphasis added.) Suarez II, supra, 242 Conn. 257-58." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 889 A.2d 810 (2006).
From a review of the pleadings and the evidence submitted, it appears that Griffin seeks to recover under the substantial certainty theory of liability. Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of Greenwich, the apportionment defendant and employer of the original plaintiff Parker. Suarez I, supra, 229 Conn. 109-10.
"Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct. To satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm. " (Internal citations and quotation marks omitted.) Sullivan v. Lake Compounce Theme Park Inc., supra, 277 Conn. 118-19, 889 A.2d 810 (2006) quoting, Suarez I, supra, 229 Conn. 109-10.
While Griffin's complaint against Greenwich contains several allegations, the complaint omits any claim that Greenwich "intended harm" to befall its employee Parker or that Greenwich anticipated that harm would result from their conduct which was necessary to meet the substantial certainty standard. Id. at 119. "Failure to correct a dangerous condition standing alone, is insufficient to satisfy the substantial certainty test because `failure to take effective remedial action does not translate to an affirmative intent to create an injury causing situation.' Cf. Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985) (`a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results' [internal quotation marks omitted]); Melanson v. West Hartford, 61 Conn.App. 683, 689, 767 A.2d 764 (`failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that creates personal injury'), cert. denied, 256 Conn. 904, 772 A.2d 595 (2001)." Id. at 119-20; see also, Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 457, 830 A.2d 372 (employer's failure to repair equipment and provide adequate safety precautions did not constitute intentional creation of dangerous condition sufficient to satisfy substantial certainty test), cert. denied, 266 Conn. 925, 835 A.2d 473 (2003); Morocco v. Rex Lumber Co., 72 Conn.App. 516, 527-28, 805 A.2d 168 (2002) (plaintiff did not meet substantial certainty standard when evidence showed that he sustained injuries because machine on which he was working was missing safety shield).
IV Conclusion
Accordingly, because the plaintiff's complaint contained no allegations that the defendants' conduct was motivated by their intention to cause the decedent harm or knowledge that such harm would result, the court concludes that it did not satisfy the substantial certainty standard as set forth in Suarez I and Suarez II. Additionally, there is nothing in the pleadings or record before the court to infer that Griffin is claiming that Greenwich by its actions intended to cause injury to its employee, Parker. No reasonable trier of fact could construe the alleged facts, even in a light most favorable to the apportionment plaintiff Griffin, to find that Greenwich had an actual intent to injure its employee, nor can one imply that Greenwich had a design to injure its employee on the basis of the facts alleged relating to Greenwich's conduct and the related circumstances surrounding this incident. See Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 198. Summary judgment shall enter in favor of the Greenwich Association of Retarded Citizens, Inc. on the second count of the apportionment complaint filed by Griffin Ford, Inc.
THE COURT By Richard E. Arnold, Judge