Opinion
No. CV 07-5005010-S
September 15, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#119)
The defendant, Kent S. Patterson, moves for summary judgment on the ground that there is no genuine issue of material fact because the plaintiffs action is barred by the exclusivity provisions of the Workers' Compensation Act, General Statutes § 31-284, and does not fall within the exception as set forth in General Statutes § 31-293a.
General Statutes § 31-284(a) provides 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 . . . resulting from personal injury . . . All rights and claims between an employer . . . and employees arising out of personal injury . . . in the course of employment are abolished other than rights and claims given by this chapter . . ."
General Statutes § 31-293a provides in relevant part: "If an employee . . . has a right to benefits or compensation under [the Workers' Compensation Act], 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 . . . and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in Section 14-1."
This action arises out of an accident in which the plaintiff was involved during the course of his employment. The plaintiff and the defendant, Kent S. Patterson were co-workers in the employ of Reflexite Corporation. On October 27, 2005, the two employees loaded a box style truck, owned by Reflexite Corporation with materials to transport from one facility to another facility, both of which were owned by the corporation. The truck was driven by Patterson approximately one-half mile to the facility for the materials to be off-loaded and stored. Patterson backed the truck up to one of the loading bays at the building, parked the truck against the loading bay, and left the truck. The plaintiff also exited the truck, and proceeded to locate a forklift in order to unload the truck. While unloading the truck, the truck moved forward causing the dock plate to fold under the weight of the forklift, the forklift dropped, and the plaintiff sustained a jolt to his spine resulting in an injury.
On August 22, 2007, the plaintiff filed a complaint against the defendants, Reflexite Corporation and Kent Patterson, for personal injuries. An amended revised complaint was filed on November 7, 2007, and on the same date, the plaintiff filed a withdrawal of action against the defendant. Reflexite Corporation. A motion to intervene was granted on behalf of Reflexite Corporation on November 4, 2008, as a party plaintiff, and Reflexite filed an intervening complaint to recover monetary damages as a result of payments made to the plaintiff under the Workers' Compensation Act.
Because the complaint was withdrawn as to Reflexite Corporation, reference to the defendant shall be limited to the defendant Patterson.
On October 29, 2008, the defendant filed a motion for summary judgment, a memorandum in support of the motion, and an affidavit of Patterson. On January 21, 2009, the plaintiff filed an objection to the motion for summary judgment, as well as a memorandum of law in opposition, affidavit of the plaintiff and documents in support thereof. The court heard argument from counsel on September 8, 2009.
The plaintiff also filed a Supplemental Objection to Motion for Summary Judgment, dated August 31, 2009, in which he argues that the motion for summary judgment should not be heard by the court because it was fled in October 2008, and too much time has elapsed since the motion was filed. He also argued that the motion is being presented to the court at a period of time which would have a substantial impact on his ability to prepare for trial should the motion be denied, as the trial is set for January 2010. The trial date was scheduled on March 10, 2009. Practice Book § 17-44 allows for the filing of a motion for summary judgment after the case has been assigned for trial with the "judicial authority's permission." The motion for summary judgment was filed prior to the case being assigned, and assuring counsel that the court would render a decision within a reasonable time to afford him the ability to prepare for trial should the court deny the motion, the court overruled the plaintiffs Supplemental Objection, #128.
Pursuant to Practice Book § 17-49, "summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party 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.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006).
"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles or substantive law, entitle[s] him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
"As the party moving for summary judgment, the [defendant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. I v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
The defendant moves for summary judgment on the ground that the plaintiff's action is barred by the exclusivity provisions of the Workers' Compensation Act, specifically that the plaintiffs claim against Patterson does not fall within the motor vehicle exception, under General Statutes § 31-293a, and that his exclusive remedy is to seek workers' compensation benefits through his employer. He argues that § 31-293a does not apply because Patterson was a fellow employee of the plaintiffs and was not "in operation of a motor vehicle" at the time of the loss.
"Section 31-284(a), the exclusivity provision in the [Workers' Compensation Act], 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." Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000). "Generally, an employee who is injured during the course of employment may not sue a fellow employee for his injuries and is restricted to workers' compensation benefits through his employer." Stewart v. Heffeman, Superior Court, judicial district of Hartford, Docket No. 801396 (November 14, 2001).
General Statutes § 31-293a provides an exception to this rule when the injury is caused by a fellow employee's negligence in operating a motor vehicle. The statute provides in relevant part: "If an employee . . . 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 . . . and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1." (Emphasis added.) The plaintiff can use this exception if the facts of his case fit within its parameters. See, Surprenant v. Burlingham, 64 Conn.App. 409, 414, 780 A.2d 219 (2001) (before plaintiff could avail himself of exception to general exclusivity provision of workers' compensation statute he must show that the facts of his case fall within the exception).
The early cases which addressed this exception mainly dealt with the function of the vehicle at the time of the injury. Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980) (where the vehicle was a truck equipped with a hydraulic hoist with separate controls from the truck which was stationary, the court held that the machine performing the function was unrelated to transportation); Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983) (where the plaintiff was struck by the shovel of a backhoe, which was being maneuvered separate from the movement of the vehicle, thus the function of the vehicle at the time of the injury was as a piece of excavating equipment and not a means of transportation); Kegel v. McNeely, 2 Conn.App. 174, 476 A.2d 641 (1984) (where the truck had a mounted crane, each with separate engines and controls, and the movement of the crane was independent from the truck, the court held that the operation of the crane was not the operation of a motor vehicle). The legislature then amended § 31-293a by modifying the definition of the term "motor vehicle," providing that "contractors' mobile equipment such as bulldozers, power shovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off roads are not motor vehicles if the claimed injury involving such equipment occurred at the worksite . . ." Public Act 83-297.
In Dias v. Adams, supra, 189 Conn. 354, the court discussed the general purpose of the exception and reviewed the legislative history. The court went further to say, "Although the legislative history of § 31-293a is not especially revealing, there is some evidence that the intention was to distinguish `simple negligence on the job' from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct relationship to the hazards of the employment. At the same time it has accorded the injured employee, in addition to workers' compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident." Id., 359-60.
12 H. R. Proc., Pt. 9, 1967 Sess., pp. 3813, 4035, remarks of Representative Paul Pawlak: "Section 5. This section stops third party suits against fellow employees since such employee usually is unable to meet any judgment involving serious injuries. However, the section specifically permits suits against fellow employees where the injury or death was the result of wilful or malicious wrong by such fellow employee or involves the operation of a motor vehicle. We are here trying to make sure that a fellow employee cannot ordinarily be sued for simple negligence on the job, but we do not believe that he should be protected against wilful or malicious wrong, nor do we believe he should be protected if the employee is injured as a result of a motor vehicle accident. Dias, supra, 189 Conn. 359 n. 3.
In Fields v. Giron, 65 Conn.App. 771, 783 A.2d 1097, cert. denied, 258 Conn. 936, 785 A.2d 230 (2001), the court relying on the dictum in Dias cited above, held that the plaintiff had subjected himself to the special hazards of his employment, namely tree removal and maintenance, and disallowed the plaintiff from bringing an action, finding that his exclusive remedy was under the Workers' Compensation Act. The plaintiff and the defendant were employees of a tree maintenance and removal company. In attempting to remove a fallen tree, the defendant tied a rope around the tree, fed it through a block and tackle and attached the rope to the back of his company vehicle. Id., 773. As the defendant depressed the accelerator pedal, the rope snapped because of the tension, and struck the plaintiff, causing injury. Id.
In Colangelo v. Heckelman, 279 Conn. 177, 900 A.2d 1266 (2006), the court rejected the analysis adopted by the Appellate Court in Fields v. Giron. "[Section] 31-293a contains no language suggesting that its exception to the general rule of fellow employee immunity excludes any motor vehicle accident that, because of the nature of the employment, is a special risk of that employment not common to members of the public generally." Id., 190. "An injured employee may recover against a fellow employee as long as that fellow employee is operating a motor vehicle . . . [T]here generally will be little difficulty in ascertaining whether, under § 31-293a, a job related accident caused by a fellow employee's negligent operation of a motor vehicle gives rise to a claim against the fellow employee." Id., 192-93. The court concluded that the question of whether the vehicle was in operation was one for the trial court on remand. Id., 193-94.
No longer being required to find that the accident arises out of any "special hazards," the issue boils down to the question of operation of a motor vehicle for purposes of finding an exception under § 31-293a. "[O]peration, for purposes of the exception contained in [the Workers' Compensation Act], means driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle." (Internal quotation marks omitted.) Surprenant v. Burlingham, supra, 64 Conn.App. 414, citing, Davey v. Pepperidge Farms, Inc., supra, 180 Conn. 472 n. 1. "`Operation' of a motor vehicle connotes the control and direction of it, the activity of an `operator' or `driver' licensed for that purpose. The exception to § 31-293a relates to injury causally connected to the control and direction of the employee's vehicle." Cirillo v. Sardo, 41 Conn.App. 664, 669-70, 676 A.2d 1388, cert. denied, 239 Conn. 904, 682 A.2d 998 (1996). "[I]f a co-employee is not engaged at the time of the fellow employee's injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of . . . § 31-293a." (Internal quotation marks omitted; emphasis added.) Id., 670.
A statutory scheme similar to the Workers' Compensation Act is set forth in General Statutes § 52-556, which provides an exception to the bar of sovereign immunity in favor of the state for injuries caused by the negligence of a state employee when operating a motor vehicle. Two recently decided cases addressed the issue of injuries caused by the negligence of a state employee "when operating a motor vehicle . . ." In Allison v. Manetta, 284 Conn. 389, 397, 933 A.2d 1197 (2007), the court cited with approval the Appellate Court's construction "that operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another." (Internal quotation marks omitted.) In Allison, a state department of transportation truck was parked along the highway when a vehicle collided with a tractor trailer that had maneuvered into the travel lane in order to pass the parked truck. The trial court instructed the jury that "it is law that if [the state employee] had parked the state truck as an activity incident to moving it from one place to another along his designated maintenance route to fulfill his responsibilities, [the driver] was operating the truck as that word is used in § 52-556, even though the truck was parked and he was outside of it at the time of the accident." Id., 399. The court held that the instruction was properly explained.
General Statutes § 52-556 provides: "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury."
The instruction although proper was incomplete as further facts indicated that the truck may have been used as a warning device or protective barrier, which, under Rivera v. Fox, CT Page 15344 20 Conn.App. 619, 569 A.2d 1137 (1990), would have resulted in the truck not being "operated" under § 52-556. Allison v. Manetta, supra, 284 Conn. 400.
In Hicks v. State, 287 Conn. 421, 433, 948 A.2d 982 (2008), the court reaffirmed the Appellate Court's construction of the phrase "when operating a motor vehicle," citing Allison v. Manetta. The state employees testified in Hicks that a state truck was parked alongside the highway while they were flagging traffic around a mowing operation. The truck had been used to transport them to the site and was to be used to move them along the route of the mowing. "As our discussion in Allison v. Manetta, supra, 284 Conn. 397, indicates, the term `operation' encompasses both parking incident to travel and movement." Id., 434.
While both parties agree that the term "operation" is not clearly defined in § 31-293a, or in Title 14 of the General Statutes, the defendant argues that in order for there to be operation there must be movement and control, and cites Davey v. Pepperidge Farms, 180 Conn. 469, 472 n. 1, 429 A.2d 943 (1980). He fails to set forth the third part of that definition noted in Davey, namely, operation can also be a "circumstance resulting from the movement of a vehicle." Id.
To defeat the defendant's motion for summary judgment, the plaintiff must prove that there is no justiciable issue. There is conflicting evidence over whether or how the truck was secured after the plaintiff and defendant arrived at the second location. In viewing the evidence in the light most favorable to the plaintiff the defendant has not satisfied his burden of establishing that no genuine issue of material fact exists as it relates to the "operation" of a motor vehicle. Since the law would provide that parking the truck may be "related to the circumstances resulting from the movement," and therefore there may be operation, the question of whether the truck was parked and secured properly is a genuine issue and relates to whether there was negligence in the "operation."
Accordingly, the defendant's motion for summary judgment is denied.