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Ferryman v. Groton

Supreme Court of Connecticut
Jul 18, 1989
561 A.2d 432 (Conn. 1989)

Summary

finding that an independent legal duty is an exception to the exclusive remedy provision of General Statutes § 31-284

Summary of this case from Dorvilus v. Donovan

Opinion

(13558)

The plaintiff administrator sought to recover from the defendant city of Groton for the wrongful death of his decedent, M. He alleged that M had been electrocuted because of the city's negligence in maintaining and operating an electrical substation where M had gone to cut grass and remove weeds. The city moved to implead, as third party defendants, E Co., M's employer, and F, a fellow employee of M. The city alleged, inter alia, that the substation was owned, maintained, and operated by E Co., that E Co. controlled access to the substation and that F had unlocked the gate surrounding the substation making it possible for M to enter. E Co. and F moved to strike the third party complaint contending that the exclusive remedy provisions of the Workers' Compensation Act ( 31-284 [a]) barred prosecution of the third party complaint. The trial court granted the motion and thereafter rendered judgment on the stricken complaint in favor of E Co. and F. On the city's appeal, held, that because the allegations of the third party complaint were facially sufficient to establish an independent relationship between the city and E Co. and F, the trial court erred in striking the third party complaint; where, as here, a party against whom recovery for negligence is sought seeks to implead as a third party defendant the employer of the plaintiff, the exclusive remedy provision does not bar recovery, in the form of indemnity, from the employer if the employer can be said to have breached an independent duty to the third party plaintiff.

Argued April 6, 1989

Decision released July 18, 1989

Action to recover damages for the wrongful death of the plaintiff's decedent, brought to the Superior Court in the judicial district of New London, where the defendant filed a third party complaint against General Dynamics Corporation and Charlie R. Franklin; thereafter, the court, Hurley, J., granted the motion of the third party defendants to strike the third party complaint and rendered judgment thereon; thereafter, the court rendered a stipulated judgment for the plaintiff on the complaint, and the defendant-third party plaintiff appealed from the judgment for the third party defendants on the third party complaint. Error; further proceedings.

Ronald J. Cohen, for the appellant (defendant-third party plaintiff city of Groton).

Thomas F. Maxwell, Jr., with whom were Charles H. Gifford and, on the brief, Timothy G. Atwood, for the appellees (third party defendant General Dynamics Corporation et al.).


This is a negligence action seeking to recover damages for the wrongful death of the plaintiff's decedent. The dispositive issue is whether an employee-employer relationship between a plaintiff and a third party defendant bars a claim for indemnity brought by the original defendant against the third party defendant. Because there are allegations of an independent relationship between the defendant and the third party defendant/employer, we conclude that the employee-employer relationship between the plaintiff's decedent and the third party defendant/employer does not bar the third party action.

On July 9, 1986, the plaintiff, Eugene K. Ferryman, as administrator, commenced this action seeking damages from the defendant, the city of Groton, for the death of Michael J. Ferryman. The complaint alleged that Groton was the owner of an electrical substation within the city limits. On July 3, 1985, the plaintiff's decedent entered the substation area to cut grass and remove weeds. While there he came in contact with a high voltage line and was instantaneously electrocuted. The complaint further alleged that all of this occurred by reason of Groton's negligence in the maintenance and operation of the substation.

On November 9, 1987, Groton filed a motion to implead, as third party defendants, the Electric Boat Division of General Dynamics Corporation (Electric Boat), an alleged co-owner of the substation, and Charlie R. Franklin, an Electric Boat employee. The trial court, Tamborra, J., granted the motion.

Practice Book 117 provides in part: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Such a motion may be filed at any time before trial and such permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded." See also General Statutes 52-102a.

Groton's third party complaint alleged that "[t]he electrical substation was owned, operated, maintained and controlled by Electric Boat" and that Groton "owned only the transformers and the metering equipment at the electrical substation." The complaint further alleged that "Electric Boat controlled access to the electrical substation" and that Franklin, "an employee and agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation." Further, the complaint alleged that if Ferryman's death was caused by anyone's negligence, it was the negligence of Electric Boat and Franklin. Finally, the complaint alleged that both Electric Boat and Franklin "had control of the situation to the exclusion of the City of Groton, and the City of Groton did not know of Electric Boat's or Franklin's negligence, had no reason to anticipate it and could reasonably rely on them to act otherwise." The complaint claimed indemnification.

On December 28, 1987, Electric Boat and Franklin filed a motion to strike the third party complaint in its entirety contending that the "exclusive remedy" provisions of the Workers' Compensation Act found in General Statutes 31-284 (a) barred the prosecution of the third party complaint against Electric Boat, Ferryman's employer. This statute provides in part: "All rights and claims between employer and . . . representatives . . . of such employees, arising out of death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . ." The trial court, Hurley, J., granted the motion, rejecting Groton's argument that the third party complaint alleged an independent legal relationship between Groton and Electric Boat, thus entitling Groton to indemnification. Groton declined to plead over, and the trial court thereafter rendered judgment on the stricken complaint in favor of both third party defendants. Groton filed a timely notice of a reservation of its right to appeal.

Practice Book 157 provides in part: "[I]n those instances where an entire complaint . . . has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within [a] fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint. . . ."

Practice Book 4002(a) provides in part: "A judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a manner as to be final but not terminating the litigation . . . may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of . . . as to other parties; but the party . . . may, at their option, reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes and as respects all parties; provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court . . . within twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues."

On November 1, 1988, the plaintiff and Groton filed a stipulated judgment for the plaintiff to recover $450,000 in the underlying action. Groton thereafter appealed to the Appellate Court the earlier judgment that followed the granting of the motion to strike. We then transferred the matter to ourselves pursuant to Practice Book 4023.

"The motion to strike, Practice Book, 1978, 151, replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book, 1978, 152; cf. McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973). The motion to strike, like the demurrer, admits all facts well pleaded. Cf. Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965); Weaver v. Ives, 152 Conn. 586, 589, 210 A.2d 661 (1965). `The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320; and if facts provable under the allegations would support a defense or a cause of action, the demurrer [motion to strike] must fail. Cyr v. Brookfield, [supra].' Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973)." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

"Ordinarily there is no right of indemnity or contribution between joint tort-feasors." Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). "Where, however, 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 the injury." Preferred Accident Ins. Co. v. Musante, Berman Steinberg Co., 133 Conn. 536, 543, 52 A.2d 862 (1947). "Under the circumstances described, we have distinguished between `active or primary negligence,' and `passive or secondary negligence.' Kaplan v. Merberg Wrecking Corporation, supra, 415." Kaplan v. Stop Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988). We have permitted recovery even absent a finding of an express or implied agreement as between the two tortfeasors to exercise reasonable care. Kaplan v. Merberg Wrecking Corporation, supra 411. The third party complaint here was carefully drawn so as to allege circumstances that would give rise to an application of the Kaplan doctrine.

Electric Boat and Franklin argue, however, that the original complaint alleges that Ferryman was at employee of Electric Boat, and that the exclusive remedy provisions of the workers' compensation statute i.e., General Statutes 31-284 (a), insulate them from the indemnification claim. Electric Boat claims that its liability arising from the death of its employee is limited to that imposed by the Workers' Compensation Act and that if recovery is permitted in this case, it could be paying more than the act requires.

While we have never considered this precise legal issue, we have considered a similar factual circumstance. In Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954), an employee was injured while riding as a passenger in a truck leased to her employer. The employee's injuries were caused by the operator of the truck, a fellow employee. The employee obtained judgment against the owner/lessor of the truck pursuant to a statute that made the lessor of a motor vehicle liable for injuries caused by the operation of the vehicle while leased, just as if the owner had been the operator of the vehicle. Id., 542.

General Statutes (1949 Rev.) 2479 then provided: "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." See General Statutes 14-154a.

The insurance carrier for the owner of the truck brought suit as subrogee of its insured against the employer/lessee of the truck. We allowed recovery by the insurance carrier against the employer reasoning that the employer's liability to the owner of the truck was "predicated upon the leasing of the truck [and was] not based upon any duty that the [employer] owed to [its employee] but upon an entirely independent and separate duty owed to [the lessor]." Id., 554.

Having found an independent, legal duty owed by the employer/lessee to the owner/lessor, not simply an active/passive negligence relationship which we now conclude would be inadequate, we permitted recovery even though the party originally injured was an employee of the employer/lessee. This view comports with the position taken by the majority of other jurisdictions that have considered this issue. See 2A A. Larson, Workmen's Compensation Law 76.

"When 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. 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 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." 2A A. Larson, supra, 76.

See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 194, 554 A.2d 287 (1989).

Thus, Electric Boat and Franklin argue that in the present instance, allegations that are based solely upon the "active or primary negligence" versus the "passive or secondary negligence" principles of Kaplan Merberg Wrecking Corporation, supra, 415, are simply inadequate to establish the independent relationship that would obviate the operation of the exclusive remedy doctrine in Electric Boat's favor. While we agree with this proposition, it is inapplicable in the present case as we conclude that there are sufficient other allegations in the third party complaint that may establish the required independent relationship between Electric Boat and Groton.

The third party complaint alleges that "[t]he electric substation was owned, operated, maintained and controlled by Electric Boat. The City of Groton owned only the transformers and the metering equipment at the electrical substation." It further alleges that "Electric Boat controlled access to the electrical substation. Finally, it alleges that Franklin, "an employee an agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation." Thus, we see 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. When viewed in the light most favorable to the pleader, as required in addressing a motion to strike; Benson v. Housing Authority, supra; 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 31-284. "`What is necessarily implied need not be expressly alleged.' Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 193, 128 A.2d 540 (1956) . . . ." Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983).

In view of the allegation concerning the property being a transformer, the law concerning fixtures may implicate the actual ownership of this item.

Since the allegations of the third party complaint were facially sufficient to establish an independent relationship between Groton and Electric Boat and Franklin, a relationship that goes beyond the active/passive negligence relationship found in Kaplan v. Merberg Wrecking Corporation, supra, we conclude that the trial court erred in striking the third party complaint.

Our conclusion that General Statutes 31-284 does not necessarily furnish the exclusive remedy against employers in the context of negligence actions, and that indemnification is possible under appropriate circumstances, is supported by the fact that the legislature has chosen not to permit indemnification in the related field of product liability. General Statutes 52-572r (d) provides: "In any product liability claim for personal injury or death arising out of and in the course of employment . . . brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability. (Emphasis added.) Had the legislature intended to provide the same protection to employers in the negligence context, it could have done so expressly and with equal precision and clarity.


Summaries of

Ferryman v. Groton

Supreme Court of Connecticut
Jul 18, 1989
561 A.2d 432 (Conn. 1989)

finding that an independent legal duty is an exception to the exclusive remedy provision of General Statutes § 31-284

Summary of this case from Dorvilus v. Donovan

In Ferryman v. City of Groton, [ 212 Conn. 138, 561 A.2d 432 (1989)], our Supreme Court held that the exclusive remedy provision of the Workers' Compensation Act, C.G.S. § 31-284a, bars a defendant from bringing a third party action for indemnification against the plaintiff's employer based solely on the theory of "active/passive."

Summary of this case from Hernandez v. Cavaliere Custom Homes, Inc.

In Ferryman, we stated that a third party's right to seek indemnity from an employer 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."

Summary of this case from Barry v. Quality Steel Products, Inc.

In Ferryman, our Supreme Court stated 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.

Summary of this case from Mariano v. Hartland Bldg. & Restoration Co.

In Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), the defendant filed a third-party complaint after it was sued in a negligence action by the plaintiff employee.

Summary of this case from Twigg v. Structure Works, Inc.

In Ferryman, the plaintiff's decedent was electrocuted when he entered City of Groton's electrical substation to cut grass and remove weeds as an employee of Electric Boat. Groton filed a third party complaint against Electric Boat, an alleged co-owner of the substation, as well as an Electric Boat employee, Charlie R. Franklin. Electric Boat and Franklin moved to strike the complaint, which was granted, resulting in an appeal.

Summary of this case from Marut v. M. Ferrara Sons

In Ferryman, the city of Groton asserted an indemnification claim on its own behalf against Electric Boat on a legal basis independent of the wrongful death action.

Summary of this case from Schietinger v. S. New England Tel.

In Ferryman, the plaintiff's decedent was an employee of the Electric Boat Division of General Dynamics Corporation who was electrocuted when he entered an electrical substation owned by the city of Groton to cut the grass.

Summary of this case from Schietinger v. S. New England Tel.

In Ferryman, the city of Groton asserted an indemnification claim on its own behalf against Electric Boat on a legal basis independent of the wrongful death action.

Summary of this case from CLP Co. v. Snetco

In Ferryman, the plaintiff's decedent was an employee of the Electric Boat Division of General Dynamics Corporation who was electrocuted when he entered an electrical substation owned by the city of Groton to cut the grass.

Summary of this case from CLP Co. v. Snetco

In Ferryman, the court, in determining the sufficiency of the complaint in ruling on the motion to strike stated, "The third-party complaint alleges that the electrical substation was owned, operated, maintained and controlled by Electric Boat" and "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."

Summary of this case from Kristjansson v. Pietrewicz

In Ferryman, the plaintiff administrator brought an action against the city of Groton for the wrongful death of the decedent.

Summary of this case from Plas-Pak Industries v. Prime Electric

In Ferryman, the employer moved to strike a third-party complaint by the first-party defendant seeking indemnification from the employer on the ground that the exclusivity clause of the Workers' Compensation Act barred such a claim against the plaintiff's employer.

Summary of this case from Garvins v. Hershey Foods Corp.

In Ferryman, the facts pleaded disclosed to the court that an implied independent legal duty, at least, potentially existed.

Summary of this case from Quintana v. Evergreen Nursery, Inc.

In Ferryman, the court held that indemnification of a third party by an employer is permissible where the employer would normally be protected by the exclusive remedy clause if the alleged right to indemnification "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..."

Summary of this case from Britt v. Danziger Development

In Ferryman v. Groton, 212 Conn. 138, 145-46 (1989), a third party plaintiff did not expressly allege the nature of its relationship with a party it claimed had a duty to take safety precautions at the property where the plaintiff's decedent was injured.

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In Ferryman v. Groton, 212 Conn. 138, 501 A.2d 432 (1989), the defendant filed a third party complaint after it was sued in a negligence action by the plaintiff employee.

Summary of this case from Kimerle v. Freelife International Oper.

In Ferryman, the employer moved to strike a third-party complaint by the first-party defendant seeking indemnification from the employer on the ground that the exclusivity clause of the Workers' Compensation Act barred such a claim against the plaintiff's employer.

Summary of this case from Buonanducci v. Hoffman

In Ferryman v. Groton, 212 Conn. 138, 140-41, 561 A.2d 432 (1989), the defendant filed a third party complaint against the plaintiff's employer, who moved to strike on the ground that it violated the "exclusive remedy" provisions of the Workers' Compensation Act.

Summary of this case from Guido v. Faustini's Caterers

In Ferryman, the Supreme Court found that the requisite independent relationship arose from the parties' joint ownership of the property on which the plaintiff was injured, and allowed a claim for indemnification to survive a motion to strike.

Summary of this case from PAC v. TOWN OF SOUTHINGTON

In Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), the dispositive issue addressed by the court was whether an employer-employee relationship between the plaintiff and a third-party defendant barred a claim for indemnification brought by the defendant (third-party plaintiff) against the third-party defendant.

Summary of this case from Espowood v. Springfield Terminal Railway Co.

In Ferryman v. Groton, 212 Conn. 138, 142 561 A.2d 432 (1989), the court stated that although there is ordinarily no right of indemnity or contribution between joint tortfeasors, recovery is permitted in circumstances "(w)here... 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...."

Summary of this case from Dunn v. F J Construction Corp.
Case details for

Ferryman v. Groton

Case Details

Full title:EUGENE K. FERRYMAN, ADMINISTRATOR (ESTATE OF MICHAEL FERRYMAN) v. CITY OF…

Court:Supreme Court of Connecticut

Date published: Jul 18, 1989

Citations

561 A.2d 432 (Conn. 1989)
561 A.2d 432

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