Summary
stating "[i]f the plaintiff was unable to rely on a specific theory or to seek a specific relief or remedy because of formal barriers in a prior proceeding, . . . he may bring the same claim in a subsequent proceeding"
Summary of this case from Ross v. New Canaan Environmental Com'nOpinion
No. CV 00-0802134
July 19, 2002
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The plaintiff, Richard Szczapa, filed a two-count complaint on October 2, 2000, against the defendants, United Parcel Service, Inc. (UPS), and Farm Family Mutual Insurance Co. (Farm Family). In count one, the plaintiff seeks uninsured motorist coverage for injuries he sustained while at work for UPS, which is alleged to be self-insured. In count two, the plaintiff seeks uninsured motorist coverage pursuant to his own automobile insurance policy with Farm Family. The claims arise out of an incident on June 7, 1995, while the plaintiff was working on the UPS loading dock in Windsor Locks. He had one foot on the loading dock and one foot on a tractor trailer truck owned by UPS, when an unknown UPS employee moved the tractor trailer away from the loading dock, causing the plaintiff to sustain injuries.
UPS has denied that it is self-insured in its answer to the complaint.
This complaint is the plaintiffs second lawsuit against UPS arising out of this incident. In 1997, he filed a previous complaint alleging that UPS, as the employer of the tortfeasor, is vicariously liable for the negligence that caused his injuries. The plaintiff specifically alleged that UPS was negligent in failing to (a) reasonably control the tractor trailer, (b) give any warning signal before moving the truck from the loading dock, (c) inspect the tractor trailer before moving it from the loading dock, (d) train its employees to determine the location of other employees on the loading dock before a truck is moved, (e) implement policies for safety when vehicles leave loading docks and (f) enforce such policies. The court, Wagner, J., granted UPS' motion to strike that complaint on November 17, 1997, finding that General Statutes § CT Page 8823 31-293a precluded the plaintiff from recovering for his injuries from his employer based on a claim of vicarious liability. The Appellate Court affirmed this decision on January 11, 2000. Szczapa v. United Parcel Service, Inc., 56 Conn. App. 325, 743 A.2d 622, cert. denied, 252 Conn. 951, 743 A.2d 299 (2000).
General Statutes § 31-293 a provides in relevant part: "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1."
After the Appellate Court affirmed the trial court's decision, the plaintiff filed the present complaint. In its answer to the complaint, UPS has asserted six special defenses alleging that (1) the plaintiffs claim is barred by General Statutes § 31-284 (a), (2) the plaintiff failed to comply with the terms of UPS' uninsured motorist policy, (3) any claims that the plaintiff makes based on UPS' uninsured motorist policy are limited to the policy limits less any credits or payments the plaintiff has already received, (4) the plaintiffs claim is barred by contractual and statutory statutes of limitations, (5) the plaintiff does not qualify for benefits under UPS' uninsured motorist policy, and (6) the plaintiffs claim is barred by the doctrine of res judicata.
General Statutes § 31-284 provides in relevant part, "(a) 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, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (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. . . ."
UPS has filed a motion for summary judgment as to the first count of the plaintiffs complaint and a memorandum of law in support of its motion on the ground that there is no genuine issue of material fact and that the plaintiffs claim against UPS is barred by the doctrine of res judicata. In particular, UPS argues that the plaintiffs claim against it rests on the same events and factual issues that the plaintiff relied on in the prior proceeding that were decided by Judge Wagner and affirmed by the Appellate Court. In support, UPS submits the earlier complaint alleging vicarious liability (Exhibit A) and Judge Wagner's memorandum of decision granting UPS' motion to strike (Exhibit B). In his opposition memorandum, the plaintiff argues that (1) res judicata does not apply, (2) the plaintiff can recover under the uninsured motorist policy and (3) UPS brought the motion for summary judgment in bad faith.
Pursuant to Practice Book § 17-49, a motion for summary judgment shall be granted if there is no genuine issue of material fact and the movant 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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). The moving party "has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . ." (Citation omitted; internal quotation marks omitted.) Id. In order for the motion to be denied, the opposing party must show, through evidence, that a genuine issue of material fact exists. Id. "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Id.
The defendant argues that the plaintiffs action is barred by the doctrine of res judicata. Res judicata "prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Milford v. Andresakis, 52 Conn. App. 454, 462-63, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999). The doctrine is only applicable where there has been a final judgment rendered on the merits. See id., 460. "A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose." (Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).
Courts have "adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata." (Internal quotation marks omitted.) Id., 590. A judgment in a prior proceeding extinguishes "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a `transaction,' and what groupings constitute a `series,' are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." (Internal quotation marks omitted.) Id. If the plaintiff was unable to rely on a specific theory or to seek a specific relief or remedy because of formal barriers in a prior proceeding, however, he may bring the same claim in a subsequent proceeding. 1 Restatement (Second), Judgments, Former Adjudication: the Effects of a Judicial Judgment § 26(1)(c) and comment c (1982). Thus, "[t]he appropriate inquiry . . . is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding. . . ." (Emphasis in original; internal quotation marks omitted.) Milford v. Andresakis, supra, 52 Conn. App. 463-64.
In the present action, the plaintiff alleges essentially the same facts that he alleged in the prior proceeding. Unlike in the prior proceeding, where the plaintiff alleged that UPS was vicariously liable for the action of the unknown employee, the plaintiff now alleges that UPS is self-insured and therefore must provide coverage to the plaintiff under its own uninsured motorist policy. The plaintiff argues that pursuant to General Statutes § 38a-336 (f), he can recover from UPS' uninsured or underinsured motorist policies even though he received workers' compensation.
General Statutes § 38a-336 (f) provides in relevant part: "Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage."
Section 31-284 states that an employer will not be held liable "for any action for damages on account of personal injury sustained by an employee arising out of and in the course of employment. . . ." Rather, the employer must secure compensation for the employee pursuant to the Workers' Compensation Act. General Statutes § 31-284. Although courts have held that § 31-284 provides the exclusive remedy for employees injured at work, the legislature enacted § 38a-336 (f), allowing employees to recover under their employer's uninsured and underinsured motorist policies. See Conzo v. Aetna Ins. Co., 243 Conn. 677, 680-81, 705 A.2d 1020 (1998). An employee, therefore, can be compensated for his injuries by both workers' compensation and his employer's uninsured and underinsured motorist policies. Id. Moreover, regardless of the fact that the employer is self-insured, the employee can still be compensated for his injuries from both sources. Id., 686.
Accordingly, the plaintiff is correct in asserting that an employee may be entitled to uninsured and underinsured motorist benefits from an employer even if it is self-insured. Under the res judicata transactional test, however, the plaintiff is barred from asserting this claim in the present action because it arises out of the same transaction, namely, that he was injured due to an unknown fellow employee's negligence, as his prior lawsuit against UPS. Thus, the plaintiff has already had an adequate opportunity to litigate all claims arising out of this transaction, notwithstanding the fact that he failed to assert this particular legal theory of liability against UPS in the prior lawsuit. Res judicata prevents reassertion of the same claim regardless of what additional or different legal theories might be advanced in support of it. Milford v. Andresakis, supra, 52 Conn. App. 462-63. Further, the plaintiff makes no claim that he was unable to litigate the uninsured or underinsured motorist theory in the prior proceeding.
The court notes that, arguably, the plaintiff might have asserted that his prior 1997 action predated the Supreme Court's decision in Conzo v. Aetna Ins. Co., supra, 243 Conn. 677, which held that an employee is entitled under § 38a-336 (f) to seek uninsured motorist benefits "regardless of the status of his employer as a self-insurer or as a purchaser of a commercial policy of insurance," a question that had previously been specifically left open by a 1996 ruling of the court. Id., 681-82. Such an argument, however, would fail for the following reason. Section 38a-336 (f) was passed in 1993 (effective January 1, 1994), establishing that an employee could collect uninsured motorist benefits despite having received workers' compensation. In 1996, the case of Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, CT Page 8828 238 Conn. 285, 289 n. 4, 679 A.2d 925 (1996), left open the question of the effect of § 38a-336 (f) when the employer is self-insured, a question that was answered in the affirmative by Conzo v. Aetna Ins. Co., supra, 243 Conn. 677, in February 1998. The plaintiff herein brought the prior action against UPS in May 1997. Judge Wagner granted the motion to strike on November 17, 1997. The fact that § 38a-336 (f) was subsequently clarified to include claims against a self-insured employer does not alter the res judicata effect of the prior lawsuit on the present one. See Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 687, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998). Considering that the Reliance case specifically left the critical question open, the plaintiffs claim for uninsured motorist benefits could have been brought along with the prior one in 1997. Since there was no formal barrier to his making an uninsured motorist claim against UPS in 1997, it is now barred by res judicata.
The plaintiff also argues that res judicata does not apply to the present proceeding because the judgment in the prior proceeding was not a final judgment on the merits. The doctrine of res judicata does not apply unless there has been a final judgment on the merits. Milford v. Andresakis, supra, 52 Conn. App. 460. A decision on a motion to strike is considered a final judgment "(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." (Internal quotation marks omitted.) White v. White, 42 Conn. App. 747, 749, 680 A.2d 1368 (1996). Here, the plaintiff did not replead after Judge Wagner granted the motion to strike, but rather allowed judgment to enter and took an appeal. "When a judgment has been rendered on an entire complaint . . . by judgment on the granting of a motion to strike . . . such judgment shall constitute a final judgment." Practice Book § 61-2.
It is clear that the motion to strike in the prior proceeding required the trial court to decide the merits of the plaintiffs claim against UPS. Judge Wagner's ruling on the issue of vicarious liability determined as a matter of law that § 31-293 a precluded the plaintiff from recovering. After the court granted the motion to strike, the plaintiff did not replead but rather allowed judgment to be entered against him. As such, the court's decision on the motion to strike was a final judgment on the merits. Thus, the plaintiffs argument that the prior proceeding did not terminate in a final judgment on the merits fails. See Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 686-87.
Finally, the plaintiff argues that UPS acted in bad faith by filing this motion for summary judgment. The plaintiff contends that UPS misstated the law of res judicata in its supporting memorandum and that UPS has intentionally failed to answer the plaintiffs interrogatories seeking the identity of the unknown driver. The plaintiffs first contention is wholly without merit. As to the second contention, the plaintiffs discovery of the identity of the unknown driver is immaterial to the court's res judicata analysis. The plaintiff could have easily determined what, if any, uninsured and underinsured motorist policy UPS carries, or whether UPS is self-insured by filing standard form interrogatories. In response to the plaintiffs allegation that UPS is self-insured, UPS answered by way of a denial on March 21, 2001. The motion for summary judgment was not filed until January 23, 2002. The plaintiff filed interrogatories and supplemental interrogatories neither of which indicate that he attempted to discover if UPS had insurance and what type of insurance it had. Absent evidence supporting the plaintiffs allegation that UPS is self-insured, which is denied by UPS, the plaintiffs present claim against UPS is nothing more than an attempt to revisit the vicarious liability claim that he asserted in the prior proceeding. Thus, as stated above, the plaintiff is barred by res judicata from bringing this claim.
Submitting interrogatories regarding a defendant's insurance coverage in a motor vehicle cause of action is standard practice. See Practice Book Form 106.10-A and S 69.
The plaintiff filed a request to file supplemental interrogatories and the supplemental interrogatories on June 22, 2001. This court granted the plaintiff permission to file the supplemental interrogatories on April 25, 2002. Question one of the supplemental interrogatories asked UPS to identify the name and address of the driver. UPS filed objections to the supplemental interrogatories on July 18, 2001. The plaintiff filed a motion for default against UPS for its failure to answer the supplemental interrogatories on December 10, 2001. He refiled this motion on January 30, 2002. The plaintiff argues in his memorandum in opposition that UPS is acting in bad faith by failing to supply the information that the plaintiff requested regarding the driver of the tractor trailer truck. He argues that although the court has yet to rule on his motion for default, UPS is "perpetuating an untruth" by not supplying the information regarding the driver of which the plaintiff asserts UPS has knowledge. (Plaintiffs Memorandum, p. 8.) In order for the court to decide the plaintiffs motion for default, pursuant to Practice Book § 17-3, the plaintiff must claim the motion by filing a short calendar claim which he has not done. As such, the parties' discovery dispute and motions filed incident thereto are not presently before the court for determination.
CONCLUSION
Accordingly, the defendant's motion for summary judgment as to count one of the plaintiffs complaint is granted.
BY THE COURT
___________________ Peck, J.