Opinion
CV156028999S
04-07-2016
Carlos Perez v. Unimetal Surface Finishing, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO STRIKE #102
Barbara Brazzel-Massaro, J.
INTRODUCTION
This action was filed by the plaintiff Carlos Perez on November 16, 2015. He has named as the Defendant, Unimetal Surface Finishing, LLC. The complaint contains one count. On January 28, 2016 the defendant filed a motion to strike the complaint in its entirety. The defendant contends that the plaintiff brought this action beyond the applicable statute of limitations and that the plaintiff's right of action is based upon the Worker Compensation Act. The plaintiff filed a motion for extension of time to respond to the motion to strike but did not claim the motion for extension for consideration on the short calendar. However, even if the court granted the motion for extension of time, the time has passed and the plaintiff did not filed a memorandum in opposition by the extension date. The matter was scheduled for argument at short calendar on March 21, 2016. Counsel for the plaintiff did not appear for argument. Counsel for the defendant represented that notice of the short calendar had been provided to counsel and there was no contact. The court instructed counsel to make a telephone call to counsel before argument was conducted. Counsel called and reported to the court that there was no answer and a message was left. The court proceeded with the argument. On March 28, 2016 the plaintiff filed a memorandum on opposition to the motion without any notice to the defendant or permission to file the opposition out of time.
FACTUAL BACKGROUND
The plaintiff, Carlos Perez was employed by the defendant, Unimetal Surface Finishing, LLC in October 2013. The plaintiff alleges that he was attacked on October 29, 2013 by a fellow employee and sustained damages. He filed this action alleging that the defendant is responsible under the theory of negligent supervision of its employees and in particular that the defendant is negligent because of inadequate security and failure to protect against violent altercations. The Return of Service filed by the marshal is noted as docket entry no. 100.32. It indicates that the complaint was served on the defendant on November 9, 2015.
DISCUSSION
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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Further, our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). " [T]he trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Practice Book § [10-39(c)], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-39(c)] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).
The claim by the plaintiff is governed by Conn. Gen Stat. § 52-584 as to the applicable statute of limitations. This statue provides in relevant part: " [n]o action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . In this action, the plaintiff served the action on the defendants on November 9, 2015. (Sheriff's Return) The injury, as defined by the statute, occurs when a person has suffered actionable harm. Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986). The plaintiff contends and there is no disagreement that the action which caused the injury occurred on October 29, 2013. The two year period of time for purposes of the statute would end on October 29, 2015. The return of the marshal which is provided in this action indicates that the action was commenced on November 9, 2015. This time period is beyond the two year statute of limitations. In opposition to the argument of the defendant, the plaintiff argues that the commencement was timely in accordance with C.G.S. § 52-593a(b). In particular, the plaintiff argues that the complaint and summons were provided to the marshal at a date before October 29, 2015. In making this argument, the plaintiff has failed to provide any supporting documentation or affidavit as to the specific date when the complaint and summons were placed in the hands of the marshal. To simply argue that the complaint was delivered to the marshal at an undisclosed time before the October 29, 2015 date is insufficient. Thus, based upon the argument by defendant and the return of service which is part of the court documents, the complaint is time barred.
The plaintiff also argues that the plaintiff's exclusive remedy is pursuant to the Workers' Compensation Act because the injury occurred during the course of the employment of the plaintiff by the defendant Unimetal. Conn. Gen. Stat. § 31-284(a) states in relevant part: " [an] employer . . . 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" and that " all rights and claims between an employer . . . and 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."
The plaintiff in his opposition cites two actions in support of his opposition. The first action was Seguro v. Cummiskey, 82 Conn.App. 186, 844 A.2d 224 (2004). This action does not address the issue of exclusivity of the worker compensation claims which has been raised by the defendant. The court in Seguro addresses the issue of the duty of an employer to protect third persons. In Seguro, the employee was a bartender who left the business in his motor vehicle after having several beers and while driving struck the plaintiff. The action does not support a position that pursuant to the exclusivity provision an employee must first file a workers' compensation claim when injured during the course of his work. This action is based upon the duty of employer to a third person who is injured by an employee's negligent acts and not the employee's claim of injuries to him or her that occurred while he or she was in the course of employment.
The second action that the plaintiff relies upon in support of their opposition to the motion to strike is Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988). This action once again does not involve the injury of an employee while in the course of employment. The plaintiff was sexually assaulted by an employee of the defendant who was given a key to her apartment. This case had no factual or legal similarity and thus does not provide any support for the claim of the plaintiff in this case.
Based upon the allegations in the complaint and the statutory provision for exclusivity, the motion to strike is granted on this basis.
CONCLUSION
Based upon the foregoing, the motion to strike is granted in all regards.