Kris E. Moon v. JEP (2010)

MEMORANDUM OF DECISION

ISSUE

The issue is whether the court should grant the Torrington Municipal & Teachers Federal Credit Union (the credit union)'s motion to strike the apportionment complaint.   The court hereby denies the credit union's motion to strike.

FACTS

On March 23, 2010, the plaintiff, Kris-Erin Moon, filed an amended, one-count negligence complaint against the defendant, JEP Pilkington Yard Care, LLC. The plaintiff alleges the following facts.   On February 19, 2008, she was walking in the parking lot of premises known as the Torrington Municipal and Teachers Federal Credit Union (the credit union), “for the [purpose] of entering the business located on said property where she was working,” when she slipped, fell and sustained several injuries.   The plaintiff alleges that the defendant had the duty to maintain the credit union and the credit union parking lot.   On the date that she was injured and for sometime prior thereto, the plaintiff asserts that the parking lot was in a dangerous and defective condition because it was covered in snow and ice, and there were no warnings or notices regarding this condition.   In an answer and special defense filed on June 18, 2010, the defendant denies the material allegations of the complaint and asserts that the plaintiff's injuries were directly and proximately caused by her own negligence.

The defendant filed an apportionment complaint against the credit union on July 6, 2010.   In its apportionment complaint, the defendant incorporates the allegations of the amended complaint and alleges that it is seeking to apportion liability pursuant to General Statutes §§ 52-572h and 52-102b because the credit union owned and/or maintained the premises upon which the plaintiff fell.   As a result, the defendant asserts that if the plaintiff sustained the personal injuries described in her complaint, it is the credit union's negligence that was the direct and proximate cause of her injuries.

On August 26, 2010, the credit union filed a motion to strike the apportionment complaint on the ground of legal insufficiency.   The defendant filed an objection to the credit union's motion on September 24, 2010.   This matter was heard at the October 18, 2010 short calendar.

DISCUSSION

“[A] motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, 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).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [apportionment complaint], construed in favor of the [apportionment plaintiff] to determine whether the [apportionment plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

In its motion to strike and supporting memorandum of law, the credit union argues that the defendant's apportionment complaint must be stricken because it is in “contravention of the clear directive” of General Statutes § 31-284, the exclusivity provision of the workers' compensation act.   Specifically, the credit union argues that § 31-284 provides it with immunity because the plaintiff alleges that she was injured while she was entering the credit union for work, and this allegation is incorporated in the apportionment complaint.   In its objection, the defendant argues, inter alia, that a question remains regarding the plaintiff's status at the time of her injury.

Section 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 ․” (Emphasis added.)   General Statutes § 31-275 provides:  “(1) ‘Arising out of and in the course of his employment’ means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee's duty in the business or affairs of the employer upon the employer's premises, or while engaged elsewhere upon the employer's business or affairs by the direction, express or implied, of the employer, provided ․ (B) A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment ․”

At oral argument, the credit union focused on whether an injury that occurs in an employee parking lot arises out of and occurs in the scope of employment.   The credit union pointed to Hughes v. American Brass Co., 141 Conn. 231, 234-35, 104 A.2d 896 (1954), in which the Connecticut Supreme Court affirmed the commissioner's conclusion that an employee's injury, which was sustained while the employee was walking from the employer's parking lot to its plant, arose out of and was in the course of employment.   The court concluded that such an injury was incidental to employment, and as a result, the workers' compensation act applied.  Id.

While an injury in a parking lot may arise out of and occur in the scope of a party's employment, the court must also determine whether the pleadings at issue sufficiently allege an employment relationship.   In McGonigal v. ABC Hydraulics, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 0832395 (April 7, 2005, Shapiro, J.), the plaintiff, McGonigal, sued ABC Hydraulics, Inc. (ABC), the defendant, and alleged that he was “employed by one Stephen Blevins, dba Blevins Tree Service, as a tree trimmer, and was in the course of his employment by Blevins” during the events that led to his injury.   ABC subsequently filed an apportionment complaint against Stephen Blevins, dba Blevins Tree Service, and the plaintiff filed a motion to strike the apportionment complaint against Blevins on the ground that it was barred by the exclusivity provision of the workers' compensation act.  Id. Although the plaintiff's complaint alleged that he was employed by Blevins, the apportionment complaint did not incorporate the allegations of the original complaint.  Id. Rather, the apportionment complaint only stated that “the plaintiff was performing tree trimming work for [Blevins] and using [Blevins'] truck and aerial lift” at the time of the incident.  Id. Reading the complaint in the light most favorable to the apportionment complaint, the court denied the motion to strike on the ground that the apportionment complaint “[did] not contain an allegation as to by whom the plaintiff was employed at the time of the incident.”  Id. The court reasoned that the apportionment complaint required an allegation that the employee was an employee of the apportionment defendant and acting in the course of his employment.  Id. Without such an allegation, the court stated that it could not conclude “as a matter of law, pursuant to General Statutes § 31-284(a), that the apportionment [defendant was] immune.”  Id.

In the present matter, the defendant's apportionment complaint provides:  “By writ, summons and complaint ․ the plaintiff, Kris-Erin Moon, brought the above-captioned action against the defendant/apportionment plaintiff, JEP Pilkington Yard Care, LLC. On March 23, 2010, the plaintiff filed an Amended Complaint.   A copy of the Amended Complaint, dated March 23, 2010, is attached hereto as Exhibit A and is hereby made part of this Apportionment Complaint.”   The plaintiff's amended complaint provides:  “On or about February 19, 2008, at approximately 8 a.m. the plaintiff ․ was walking in the parking lot of [the property known as the Torrington Municipal and Teachers Federal Credit Union, located at 777 East Main Street, Connecticut] for the purposes of entering the business located on said property where she was working.”

As in McGonigal, the court concludes that the apportionment complaint in the present matter does not sufficiently plead an employment relationship such that the court can conclude, as a matter of law, that the credit union is immune from suit under § 31-284(a).   The apportionment complaint, which incorporates the allegations of the underlying complaint, merely provides that the plaintiff was entering the credit union “where she was working.”   While one might infer an employer-employee relationship from this statement, the plaintiff could have been working at the credit union as an independent contractor at the time of the incident, and independent contractors are not covered by the workers' compensation act.   See Hanson v. Transportation General, Inc., 45 Conn.App. 441, 446, 696 A.2d 1026 (1997), aff'd, 245 Conn. 613, 716 A.2d 857 (1998).   At this stage of the proceedings, the relationship between the plaintiff and the credit union is unclear.   Thus, the court cannot conclude as a matter of law that the credit union is immune from suit.   Since the court denies the motion to strike the apportionment complaint on the aforementioned ground, the court need not consider the defendant's additional arguments in opposition to the motion to strike.

Therefore, the credit union's motion to strike is denied.

BY THE COURT,

Roche, J.

Roche, Vincent E., J.