Opinion
TTDCV196016823S
01-03-2020
R.H. White Construction Co., Inc. v. Hop River Concrete, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sicilian, James, J.
MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION TO STRIKE
Sicilian, J.
The plaintiff, R.H. White Construction Co., Inc., moves to strike the first and fourth special defenses asserted by the defendant, Hop River Concrete, Inc. For the reasons set forth below, the motion is granted.
I. Allegations Of The Complaint And Special Defenses
In its complaint dated January 11, 2019, the plaintiff alleges that it entered into a subcontract agreement with the defendant pursuant to which the defendant agreed to provide labor and concrete materials for a water filtration plant improvement project in Groton, Connecticut. The plaintiff alleges that its employee, intervening plaintiff David Goff, was injured at the project site when he fell through a piece of plywood onto a concrete floor below. The plaintiff alleges that Mr. Goff’s injuries were caused by the negligence of the defendant and that the plaintiff or its insurer expended sums and will be obligated to expend additional sums to compensate Mr. Goff through a workers’ compensation claim brought against it. The plaintiff seeks reimbursement from the defendant pursuant to General Statutes § 31-293 for the workers’ compensation payments it has made and will make to Mr. Goff. The plaintiff also alleges that the defendant has breached a contractual obligation to indemnify the plaintiff for workers’ compensation payments made to Mr. Goff.
The defendant’s first special defense asserts that any losses suffered by the plaintiff were caused by the plaintiff’s breach of a duty to the defendant to ensure that the premises of the water filtration improvement project were safe so that the subcontract could be performed "without risk of injury to others." The defendant alleges that the defendant’s work was performed under the direct supervision of the plaintiff and that the plaintiff "requested the creation of the alleged dangerous condition" that resulted in injuries to the plaintiff’s employee.
The defendant’s fourth special defense asserts that the plaintiff’s claims for reimbursement are limited under General Statutes § 31-293 to two-thirds of the amounts payable to the injured employee.
The plaintiff moves to strike the first special defense on the ground that General Statutes § 31-293 does not permit the employer’s negligence to limit the employer’s recovery. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 610 A.2d 1277 (1992). The plaintiff moves to strike the fourth special defense on the ground that it is procedurally improper and on the ground that it fails to state a viable defense.
Discussion
"A motion to strike challenges the legal sufficiency of a pleading ... [I]t admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings ... The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." (Citations omitted; internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985).
A. First Special Defense
The defendant acknowledges the general rule, established by Durniak, supra, that in an employer’s action pursuant to General Statutes § 31-293 for reimbursement of workers’ compensation benefits paid, a defendant tortfeasor cannot raise the negligence of the employer as a defense. However, it argues that a footnote in Durniak suggests that there is an exception to this general rule where the special defense rests on "the existence of an independent relationship between the defendant and the employer" that provides a basis for liability other than negligence. Durniak, supra, 782 n.5. The defendant cites McGahee v. Safeway Moving, Superior Court, judicial district of Waterbury, Docket No. CV-01-19854-S (March 20, 1995, Flynn, J.) , as an example of the application of this exception and argues that, under the reasoning of McGahee, its first special defense is legally sufficient.
In McGahee, an employee of a truck stop was injured when he was hit by a tractor trailer while directing traffic at the truck stop. His employer intervened to recover from the owner and driver of the tractor trailer workers’ compensation benefits it paid to its injured employee. The tractor trailer owner and driver filed a special defense alleging that they were business invitees at the truck stop and that the truck stop owner’s breach of its duty to provide safe conditions for business invitees caused the accident. The court found those allegations, "[m]ost favorably construed," sufficient to survive a motion to strike on the ground that the defendants’ relationship to the plaintiff as business invitees satisfied the Durniak exception of an independent relationship between the plaintiff and the defendants.
This court does not read Durniak quite so broadly. Durniak referenced Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), as support for its reference to an independent relationship exception to the general rule barring a defendant from raising an employer’s negligence as a defense to the employer’s claim under General Statutes § 31-293. In Ferryman, the Court considered "allegations by an owner whose property, while in the possession of another, is alleged to have caused the death of a third person whose access to the property has been furnished by the agent of the party in possession." Id., 146. The court held that, "[w]hen viewed in the light most favorable to the pleader, as required in addressing a motion to strike; ... 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" the workers’ compensation statutes. (Citation omitted.) Ferryman supra, 212 Conn. 146.
Decisions post-dating McGahee persuasively explain that the Durniak/Ferryman exception is narrow and not properly invoked when the defendant’s allegations are fundamentally based in negligence, as is the defendant’s first special defense in this case. "In view of the exclusivity of workers’ compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 699, 694 A.2d 788 (1997).
The defendant here relies on allegations that the area in which Mr. Goff’s injury occurred "was under the direct supervision and control" of the plaintiff and that the plaintiff "created an unsafe condition on the premises" where it "directed the defendant to perform work." These allegations are insufficient.
Judge Adams’ decision in Recimos v. Benenson Capital Partners, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6007024-S (February 29, 2012, Adams, J.), provides a particularly thorough explication of the limits of the Ferryman exception and catalogues multiple decisions that conclude that Ferryman requires more than allegations that the employer had possession and control of the premises. Judge Tanzer’s decision in Kristjansson v. Pietrewicz, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-02-0279552-S (April 7, 2005, Tanzer, J.), is also particularly instructive. In that case, the plaintiff was an employee of Talcott Machine Products. The defendant was hired by Talcott Machine Products to repair a machine. During the repair, the plaintiff sustained injuries from an electric shock. The plaintiff sued the defendant and Talcott Machine Products filed an intervening complaint against the defendant seeking to recover workers’ compensation payments it made to the plaintiff. The defendant filed a third-party complaint alleging that the injury was caused by the negligence of Talcott Machine Products. Judge Tanzer granted summary judgment for Talcott Machine Products on the defendant’s third-party complaint, holding that the claim was barred by the exclusivity provisions of the Workers’ Compensation Act, General Statutes § 31-284.
The defendant’s allegations in Kristjansson were similar to, although more extensive than, the allegations of the defendant’s first special defense in this case. The Kristjansson defendant alleged that Talcott Machine Products maintained a hazardous condition in a variety of ways, including by repairing and attempting to operate the machine with rear and side panels removed, by not allowing the defendant to repair the machine as he thought best, by directing the defendant how to repair the machine, and by assuming control of the job site. There was no dispute that there was a legal relationship arising from Talcott Machine Products’ hiring of the defendant to repair the machine. Judge Tanzer noted, however, that such a legal relationship alone did not give rise to a legal duty to indemnify the defendant.
Quoting Ferryman, Judge Tanzer noted that "[a]n indemnification claim is not adequate if it is based upon any duty that the [employer] owed to [the injured employee] but [must be based] upon an entirely independent and separate duty [that the employer] owed to the [independent contractor]." (Internal quotation marks omitted.) Kristjansson, supra, Superior Court, Docket No. CV-02-0279552-S She rejected the defendant’s attempt to rely on Ferryman in her case as "unpersuasive because it erroneously locates that case’s ‘independent legal relationship’ in negligence and not in contract or property law." Id.
Here, the defendant’s first special defense alleges that the plaintiff was in "breach of a duty of reasonable care" to assure that the area, which was "under the plaintiff’s supervision and control" was safe. These allegations are grounded squarely in negligence and do not allege any independent relationship between the plaintiff and the defendant based on contract or property law that meets the Ferryman requirements. Under the reasoning of Kristjansson, Recimos, and the other cases referenced in those decisions, the allegations of the defendant’s first special defense are insufficient to satisfy the Ferryman exception.
B. Fourth Special Defense
The defendant’s fourth special defense asserts that General Statutes § 31-293 restricts the plaintiff’s recovery to two-thirds of the amount of the benefits payable to the plaintiff’s injured employee. The plaintiff moves to strike that special defense on two grounds: It alleges, first, that the defense is improper under Practice Book § 10-50 "because even if accepted as true, it does not show that the plaintiff has no cause of action." It alleges, second, that the special defense misstates General Statutes § 31-293 as that statute restricts the amount recoverable only when the action was first brought by the injured employee and not where, as here, the action was initially brought by the employer seeking reimbursement.
The plaintiff’s first argument is without merit. As the defendant points out, there are many, appropriate special defenses that serve to limit, but not necessarily entirely to foreclose, a plaintiff’s recovery. See, e.g., Practice Book § 10-53 (Contributory negligence must be affirmatively pleaded). "[L]imiting special defenses to only those enumerated [in Practice Book § 10-50] misses the fundamental purpose of a special defense." Wegryn v. Smith & Nephew, Inc., Superior Court, judicial district of New Haven, Docket No. CV-07-5013243-S (March 4, 2008, Cosgrove J.) .
However, the plaintiff’s second argument is correct and requires that the defendant’s fourth special defense be stricken. As explained in detail in the Supreme Court’s recent decision in Callaghan v. Car Parts International, LLC., 329 Conn. 564, 188 A.3d 691 (2018), our workers’ compensation laws generally allow an employer to recover workers’ compensation benefits paid to an employee injured in a work-related accident from a third-party tortfeasor that caused the employee’s injuries. Prior to 2011, if the employee brought her own action against the third-party tortfeasor, our law required the employee to reimburse the employer from the proceeds of that action for all of the workers’ compensation benefits paid by the employer. A 2011 amendment to General Statutes § 31-293 modified the employee’s obligation by providing that, in an action initiated by the employee against the third-party tortfeasor, the employee may retain "one third of the net proceeds due to her employer from the action, regardless of how much the employer is owed for reimbursement." Callaghan, supra, 329 Conn. 567.
In its fourth special defense, the defendant seeks to take advantage of the 2011 amendment by arguing that the employer-plaintiff’s recovery in this action is limited to two-thirds of the amount of benefits payable to the injured employee. That position misconstrues the import of General Statutes § 31-293 and the 2011 amendment.
As the Callaghan decision makes clear, the 2011 amendment was intended to provide an incentive for an injured employee to seek recovery from a third-party tortfeasor responsible for his injuries by ensuring that at least a portion of the net recovery of such an action would "inure solely to the benefit of the employee." General Statutes § 31-293(a). Nothing in the statute or in the legislative history of the 2011 amendment, which is recounted in detail in Callaghan, provides any support for the proposition that the statute limits the responsibility of the liable tortfeasor to either the injured employee or to the employer entitled to reimbursement for workers’ compensation benefits paid. To the contrary, Callaghan quotes Senator Coleman’s statement in the legislative history of the 2011 amendment: "[T]he reservation of one third of whatever is recovered would only apply if the employee brought the [action]. If the insurance carrier or the employer brought the [action], then the one-third reservation would not apply." Callaghan, supra, 329 Conn. 578.
The defendant’s fourth special defense is a misstatement of applicable law and does not set forth a valid defense to the plaintiff’s action.
III. Conclusion
The plaintiff’s motion to strike the defendant’s first special defense and fourth special defense is granted.