Opinion
HHDCV085022642
01-06-2016
Eric Veilleux v. Central Rigging & Transfer, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion to strike filed by the counterclaim defendant, GDS Contracting Corporation (GDS). GDS is the employer of the plaintiff, Eric Veilleux, who has sued Central Rigging & Transfer, LLC and Central Auto & Transport (Central), who are the defendants/counterclaim plaintiffs in this action. The plaintiff was injured while assisting an employee of Central in the unloading of an aerial lift. Central's counterclaim against GDS alleges that GDS was negligent in allowing the plaintiff, an untrained and inexperienced worker, to assist in the unloading of the lift. As the plaintiff's employer, GDS, who is also an intervening plaintiff by virtue of its action seeking workers' compensation benefits paid on behalf of Veilleux, moves to strike the counterclaim based on the exclusivity provision of General Statutes § 31-284(a) et seq. Central objects to the motion to strike, arguing that GDS had an independent legal duty to exercise due care toward Central.
" 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). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, " [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
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 . . . " 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 relative quick and certain compensation." (Emphasis omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000). " The exclusivity provision 'manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation.'" DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 495-96, 870 A.2d 1066 (2005).
With respect to whether or not an employer is immune from liability for claims brought by a third party, the definitive authority is Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989). In that case, the court observed that " [w]hen the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed." (Footnote omitted.) Id., 144-45.
" The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a 'primary' wrongdoer impliedly promises to indemnify a 'secondary' wrongdoer, the great majority of jurisdictions disallow this claim." Id., 145.
In Ferryman, the allegations in the third-party complaint sought to invoke the " active or primary negligence" versus " passive or secondary negligence" principles in Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 415, 207 A.2d 732 (1965). Ferryman v. Groton, supra, 212 Conn. 145. The doctrine dictates that where, between joint tortfeasors, " one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury." Id., 142-43. In reviewing the complaint, the Ferryman court agreed that allegations which grounded the third party-defendant's liability on its active or primary negligence would be " inadequate to establish the independent relationship that would obviate the operation of the [exclusivity provision] . . ." Id., 145. Nevertheless, the court found that the complaint sufficiently alleged facts that could establish an independent relationship between the defendant/third-party plaintiff, City of Groton, and the third-party defendant/employer, Electric Boat. Id.
The third-party complaint in Ferryman alleged that the electrical substation where the plaintiff was injured was owned, operated, maintained and controlled by Electric Boat while the City of Groton owned only the transformers and metering equipment at the substation. Id. After he was allowed access into the substation by another Electric Boat employee, the plaintiff was electrocuted while he was trimming grass and removing weeds. Id. These facts, implicating Electric Boat's possession and control with respect to access, were critical in the Ferryman court's determination that the complaint adequately disclosed " 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 § 31-284." Id., 146. In this case, Central argues that GDS had an independent legal relationship with Central when it provided assistance in the unloading of the lift. In arguing that GDS had with Central an " implied . . . provable prior agreement, " Central, in its supplemental briefing, points to paragraph two of its counterclaim in which it alleges that " on said September 8, 2006, prior to [the Central employee's] arrival at the premises of GDS, Andre Harton, Vice President of Operations of GDS, informed Plaintiff Veilleux that a trucking company was coming to deliver said lift and he directed Plaintiff Veilleux to help out in any way he could." This directive from a GDS supervisor to a GDS employee, however, simply cannot be construed, even in the light most favorable to the Central, as creating an independent duty or relationship with Central from which the right or promise of indemnification could be implied. This contrasts sharply with the Ferryman case, in which the court underscored allegations which demonstrated a definitive relationship and duty between the third-party defendant, Electric Boat, by virtue of its possession and control of the substation, and the Town of Groton. Because this court is not persuaded that the allegation that a GDS supervisor directed his plaintiff/employee to assist the Central employee gives rise to a similarly independent legal relationship between GDS and Central, this court cannot find an implied duty of indemnification which would obviate the exclusion provisions of § 31-284.
The motion to strike is granted.