Neil Maruszewski v. Ducci Electrical Contractors, Inc. (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 103)

The defendant, Ducci Electrical Contractors, Inc., has moved to strike the plaintiff, Neil Maruszewski's, one-count complaint, basing its argument on the exclusive remedy provisions of the Connecticut Workers' Compensation Act (the act), General Statutes § 31-284 et seq.   The act is invoked on the basis of two alleged shortcomings in the complaint.   The plaintiff filed an objection on May 20, 2010.   This matter was heard at the short calendar on June 15, 2010.

“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 ․ requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Id.

The complaint alleges that the plaintiff was injured as a result of a direction given to him by the defendant's “general foreman.”   The defendant relies on Jett v. Dunlop, 179 Conn. 215, 425 A.2d 1263 (1979), for the proposition that a “foreman” cannot constitute the “alter ego” of the employer, and so the exception to the exclusive remedy provisions of the act cannot be invoked.   The complaint also alleges that the defendant's failure to comply with the requirements of the federal Occupational Safety and Health Act (OSHA) “intentionally created a dangerous condition,” and that the defendant was “intentionally negligent.”   The defendant argues that OSHA violations do not provide a private cause of action.   Although the plaintiff concedes that OSHA violations do not provide a private cause of action, he argues that the facts outlined in the complaint, “when taken as a whole and once proven,” are sufficient to support a finding that the defendant's actions fall within the “substantial certainty standard,” which is within the exception to the act.

“The purpose of the [act] is to compensation the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.”  Jett v. Dunlop, supra, 79 Conn. 217.  “Section 31-284(a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury ․ An exception to this general rule of exclusivity exists when a plaintiff can establish that his employer either:  (1) actually intended to injure [the employee] (actual intent standard);  or 2) intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard).”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).

In concluding that the exception to the act applies only when an incident is directly attributable to an employer, the Jett court reasoned:  “Unless the defendant employer intentionally directed or authorized [the worker] to strike the plaintiff, the employer has the right to view the incident as an injury arising out of and in the course of an employment, another industrial mishap in the factory, of the sort he has the right to consider exclusively covered by the compensation system.”  (Internal quotation marks omitted.)  Jett v. Dunlop, supra, 79 Conn. 218.   Moreover, the court reasoned:  “The correct distinction to be drawn in this case is between a supervisory employee and a person who can be characterized as the alter ego of the corporation.   If the assailant is of such a rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate.   It is inappropriate where the actor is merely a foreman or supervisor.”  (Emphasis added.)  Id., 219.

In the present matter, other than asserting that the plaintiff was under the direction of a “general foreman,” the plaintiff offers no factual allegations to support his argument that the “general foreman” was the alter ego of the defendant.   Additionally, the plaintiff's complaint, even when taken as a whole, alleges bare violations of OSHA and “intentional negligence,” neither of which will serve to avoid the exclusive remedy provision of the act.   Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985);  Dagraca v. Kowalsky Bros, Inc., 100 Conn.App. 781, 791-93, 919 A.2d 525 (2007).   Instead, the plaintiff must allege facts that would support a finding that the plaintiff's employer “believed that its conduct was substantially certain to cause the employee harm.”  (Emphasis in original.)  Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118.   The plaintiff's complaint lacks allegations that the defendant's conduct “was motivated by [its] intention to cause the [plaintiff] harm or knowledge that such harm would result ․” Id., 120.

For all of the foregoing reasons, the plaintiff has failed to allege sufficient facts to avoid the exclusivity provision of the act, and the defendant's motion to strike is granted.   So ordered.

BY THE COURT,

Danaher, J.

Danaher, John A., J.