Robert Long v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 133)

FACTS

On February 14, 2012, the plaintiff, Robert Long, filed a single count complaint against the defendant, Pennant Foods Co., LLC for negligence.   The plaintiff alleges that the defendant operated food freezer facilities in North Haven, Connecticut.   On February 13, 2010, the defendant retained the plaintiff's services via Monroe Staffing Services, LLC (Monroe Staffing) to clean the ice out of one of the defendant's large industrial freezers.   The floor of the freezer was in a dangerous and defective condition, as it was completely covered in ice.   While the plaintiff was cleaning the freezer, he slipped on the ice and sustained serious injuries.

On August 15, 2012, the defendant filed the present motion for summary judgment and supporting memorandum of law (133.00) on the ground that the defendant is immune from liability pursuant to the staffing service agreement and Illinois and Connecticut workers' compensation laws.   In support of the motion, the defendant submitted evidence including, inter alia, (1) the staffing service agreement between the defendant and Monroe Staffing, and (2) the certified affidavit of Kimberly Greene, the defendant's human resources manager.

In response, the plaintiff filed a memorandum of law in opposition (144.00) to the defendant's motion for summary judgment on September 26, 2012.   In support of the memorandum, the plaintiff submitted evidence including, inter alia, excerpts from the plaintiff's certified deposition.   On February 27, 2013, the defendant filed a reply (155.00) to the plaintiff's objection, and on March 1, 2013, the plaintiff filed a response (156.00) to the defendant's reply.   The matter was heard at short calendar on March 4, 2013.   Subsequently, on April 5, 2013, pursuant to court order, defendant filed a supplemental brief (157.00) to address concerns raised at oral argument.   The plaintiff filed a responsive brief (159.00) on April 18, 2013.

DISCUSSION

“Practice Book § 17–49 provides that 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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “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 of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue․  Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

In support of its motion for summary judgment, the defendant argues that it is immune from liability for two main reasons.   First, the contract between the defendant and Monroe Staffing contains an Illinois choice of law provision, and under Illinois workers' compensation law, the client of an employee leasing company is immune from the employee's lawsuit.  215 Ill. Comp. Stat. 113/45.   The defendant contends that although the plaintiff is not a signatory to the contract, he is still bound as a third party beneficiary.   Second, even pursuant to Connecticut law, the defendant is immune from an employee's lawsuit under the right to control test and the dual employer doctrine.

The plaintiff counters first that Illinois law does not apply in this case because the plaintiff is not a signatory to the contract between the defendant and Monroe Staffing.   Second, Connecticut General Statutes § 31–292 (the lent employee statute), rather than the right to control test or the dual employer doctrine, controls.   The plaintiff argues that under the lent employee statute, the defendant is not the plaintiff's employer, and is therefore not immune from suit.

I

CONNECTICUT LAW NOT ILLINOIS LAW APPLIES TO THE PRESENT CASE

In arguing that Illinois law applies to the present case, the defendant relies on the choice of law provision contained in the staffing service agreement between itself and Monroe Staffing.   However, choice of law provisions do not necessarily govern tort actions brought by nonsignatories.   For example, in Valente v. Securitas Security Services, USA, Inc., Superior Court, judicial district of Stamford, Docket No. CV 08 5008446 (September 9, 2011, Jennings, J.), a security guard (employed by Securitas to provide security services to Affion) allegedly committed a tort against the plaintiff (an Affion employee).   The plaintiff brought a tort action against Securitas.  Id. The court in that case stated that “[the plaintiff] is not a party to the contract between Securitas and Affion, and is therefore not bound by the choice of law provision of the contract.   She is entitled to sue for her tortious claims in Connecticut where the torts occurred, and to have those torts decided under Connecticut law.”  Id.

While Valente is not directly on point factually, it nevertheless addresses the same issue of whether a contractual choice of law provision applies to a non-signatory;  and the court concluded that Connecticut law, not the contractual choice of law provision, applied to the non-signatory plaintiff.   Similarly, here, although the staffing service agreement between the defendant and Monroe Staffing contains an Illinois choice of law provision,¹ the plaintiff is not a signatory to that agreement.   Therefore, the plaintiff is not necessarily bound by the Illinois choice of law provision contained therein.

The defendant next argues that although the plaintiff is not a signatory to the contract, the plaintiff is still bound by the agreement (and the included Illinois choice of law provision) as a third party beneficiary.  “The proper test to determine whether a [contract] ․ creates a third-party beneficiary relationship is whether the parties to the [contract] ․ intended to create a direct obligation from one party to the [contract] ․ to the third party [beneficiary].”  (Internal quotation marks omitted.)  Gateway Co. v. DiNoia, 232 Conn. 223, 231, 654 A.2d 342.   See also Wykeham Rise, LLC v. Federer, 305 Conn. 448, 474, 52 A.3d 702 (2012) (“The ultimate test ․ is whether the intent ․ was that the promisor should assume a direct obligation to the third party”).  “[I]ntent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.”  Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950).

In the present case, the terms of the staffing service agreement do not suggest that the parties intended for the defendant to assume any direct obligation to the plaintiff.   As discussed in detail infra, Section III, the agreement dictated that Monroe Staffing, not the defendant, “shall be responsible for all aspects of Contract Employees' work performance, including but not limited to, recruiting, hiring, scheduling, promoting, disciplining, wage determination, and OSHA and safety training ․” (Emphasis added.)   (Def.'s Mot. Summ. J. Ex. B.) It was also the responsibility of Monroe Staffing, not the defendant, to pay the plaintiff's salary.   This evidence does not show that the defendant intended to have any direct obligation to the plaintiff.   Therefore, the plaintiff is not a third party beneficiary to the agreement between the defendant and Monroe Staffing, and is not bound by the included choice of law provision.

Moreover, even if the plaintiff were considered to be a third-party beneficiary to the agreement, he still would not be bound by the Illinois choice of law provision.   The staffing service agreement states:  “This Agreement shall be governed by the laws of the State of Illinois.”  (Emphasis added.)  (Def.'s Mot. Summ. J. Ex. B.) Here, the plaintiff has not brought a contract claim based on this agreement;  rather, the plaintiff has brought a separate tort claim for negligence against the defendant, Pennant Foods.   Thus, even if the plaintiff were a third party beneficiary, he would not be bound by the choice of law provision governing the agreement, itself.

Because the staffing service agreement's choice of law provision is not controlling, the decision of which state law to apply should be based on Connecticut's choice of law approach.   The Connecticut Supreme Court in Jaiguay v. Vasquez, 287 Conn. 323, 948 A.2d 955 (2008), held that the “most significant relationship” choice of law approach applies to tort actions brought pursuant to Workers' Compensation Act exceptions.   Specifically, the court stated:  “[When] an injured employee brings a tort action that ostensibly falls within an exception to the exclusivity provisions of our Workers' Compensation Act ․ the choice of law question ․ is which state's law, to the exclusion of the law of all other potentially interested states, is the governing or controlling law.”  Id., 347.  “We previously have summarized the most significant relationship test set forth in §§ 6 and 145 of the Restatement (Second) ․ Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:  (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.   These contacts are to be evaluated according to their relative importance with respect to the particular issue.”  Id., 351–52.

In the present case, the “most significant relationship” choice of law approach discussed by the Supreme Court in Jaiguay suggests that Connecticut law applies.   This is because (a) the plaintiff's slip-and-fall injury occurred in Connecticut, (b) the conduct causing that injury occurred in Connecticut, (c) the plaintiff resides in Connecticut and the defendant's place of business is in Connecticut, and (d) the relationship between the parties (temporary employment at the defendant's place of business) is centered in Connecticut.   Therefore, Connecticut law applies to this case.

II

PURSUANT TO C.G.S. § 31–292, MONROE STAFFING WAS THE PLAINTIFF'S EMPLOYER AS A MATTER OF LAW

Connecticut General Statutes § 31–292 (the lent employee statute) states:  “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.”   In interpreting any statute, § 1–2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”   Because the lent employee statute is unambiguous in its designation of the “lender” as employer, the statute should be interpreted pursuant to this plain meaning.

In applying the lent employee statute, the trial court in Muzi v. Reis, Superior Court, judicial district of Hartford, Docket No. CV 04 0833327 (June 30, 2005, Hale, J.T.R.), denied the defendant's motion for summary judgment.   Id. The defendant in that case argued that the plaintiff's action was precluded by the exclusivity provision of the Workers' Compensation Statute.   Id. However, the court stated that the plaintiff “was temporarily lent to the defendant [by Lima] ․ for purposes of repairing the roof for the duration of no more than two days.  [The defendant] actually testified that the plaintiff was not working for his company.   If that were the case, plaintiff's employer would be Lima and not defendant ․ [pursuant to § 31–292].”   Id. Therefore, the defendant's motion for summary judgment based on the Workers' Compensation Act exclusivity provision was denied.  Id.

In the present case, it is undisputed that the defendant retained the plaintiff's services via Monroe Staffing.   Although the defendant argues that it qualified as the plaintiff's employer pursuant to the right to control test and dual employer doctrine (infra ), it makes no argument as to its employer status under the lent employee statute.   Therefore, this court concludes as a matter of law that pursuant to § 31–292, the plaintiff's services were lent to the defendant by Monroe Staffing.   Based on the plain meaning of § 31–292 and the case of Muzi v. Reis, it follows that Monroe Staffing was “deemed to continue to be the employer” of the plaintiff, and that the defendant is not entitled to the protection of the Workers' Compensation Act exclusivity provision.

The defendant argues that § 31–292 does not apply to this case.   Instead, the defendant contends that the right to control test and the dual employer doctrine apply, and that the defendant qualifies as the plaintiff's employer under those standards.   With respect to the right to control test, the Connecticut Supreme Court has held that the lent employee statute, not the right to control test, determines employer liability.   Specifically, the Supreme Court in Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 186 A. 641 (1936), stated:  “[T]he Legislature, in 1931, adopted an amendment of the [workers' compensation] act ․ [currently § 31–292, the lent employee statute] ․ The right of direction and control of the employee is no longer the test in determining the question of liability for compensation, but such liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.”  Id., 642.²

Regarding the dual employment doctrine, “the Connecticut Appellate and Supreme Courts have not made a clear-cut determination as to whether Connecticut accepts the dual-employment doctrine, and Connecticut Superior Courts disagree regarding this issue.”   Crespo v. Bagl, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 5021661 (December 15, 2009, Tobin, J.) (49 Conn. L. Rptr. 82, 84).   This court agrees with the reasoning in Moreno v. Thermospas, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0158226 (March 13, 2001, Doherty, J.) (29 Conn. L. Rptr. 97), in which Judge Doherty stated:  “Connecticut does not appear to have adopted a ‘dual employee’ standard for those persons who work through a temporary employment agency.”  (Emphasis added.)  Id., 98.

Additionally, although the defendant cites several Connecticut cases in support of the right to control test and the dual employer doctrine,³ none of those cases reconcile § 31–292, the right to control test, and the dual employer doctrine (nor do any even mention § 31–292).   Until the Appellate Court or Supreme Court (1) reconciles § 31–292, the right to control test, and the dual employer doctrine, and also (2) adopts the right to control test or the dual employer doctrine within the context of a lent-employee statute scenario, this court concludes that § 31–292 takes precedence.   For these reasons, the court will apply § 31–292 to this case.   As previously discussed, under the plain language of that statute, Monroe Staffing was the plaintiff's employer.   Thus, as a matter of law, the defendant is not protected by the Workers' Compensation Act exclusivity provision.

III

EVEN UNDER THE RIGHT TO CONTROL TEST AND THE DUAL EMPLOYER DOCTRINE THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE DEFENDANT WAS THE PLAINTIFF'S EMPLOYER

The court has concluded that § 31–292 (the lent employee statute) applies to this case, however, because the defendant has raised the application of the right to control test and the dual employment doctrine in its motion for summary judgment, the court will address the merits of the defendant's arguments on these issues.   Even if the court were to apply the right to control test and the dual employer doctrine to the present case, there still remain genuine issues of material fact as to whether the defendant was the plaintiff's employer.   Therefore, summary judgment is inappropriate.

In reviewing the standard for summary judgment, “[t]he 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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․” (Internal quotation marks omitted.)  Ramirez v. Health Net o] the Northeast, Inc., supra, 285 Conn. 11.   In addition, (1) determining the status of a plaintiff as an employee, and (2) weighing an individual's credibility, are both often questions of fact for the trier.   See, e.g., 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);  Fernwood Realty, LLC v. Peerless Insurance Co., Superior Court, judicial district of New London, Docket No. CV 11 6007140 (January 3, 2013, Martin, J.).

With respect to the right to control test and the dual employer doctrine, the court in Valliere v. Olmo, Superior Court, judicial district of New London, Docket No. CV 10 6005762 (June 28, 2011, Martin, J.) (52 Conn. L. Rptr. 206), described both concepts as follows:  “[A]n individual may have two employers at a given time and ․ in the context of temporary employment, exclusive remedy provisions of workers' compensation statutes apply to temporary employers who are deemed ‘employers' under a right-to-control analysis.”  (Internal quotation marks omitted.)  Id., 208.  “[T]he right to control test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job.”   (Internal quotation marks omitted.)  Id., 207.

Although the court in Valliere ultimately granted the defendant's motion for summary judgment on the ground that the defendant was the plaintiff's employer under the right to control test and the dual employment doctrine, the Valliere case is factually distinguishable from the present case.   Specifically, in Valliere, the court concluded that it was “undisputed” that the defendant controlled the means and methods of the plaintiff's work.   By contrast, the present case contains conflicting evidence as to the defendant's role.   Specifically, statements contained in the affidavit of the defendant's human resources manager, Kimberly Greene, either conflict with or are wholly unsupported by clauses in the staffing service agreement.

For example, first, Greene attests in paragraphs 7 and 8 of her affidavit that the defendant “had the authority to hire and fire Robert Long” and that the plaintiff “was instructed, directed and supervised by Pennant supervisors and/or managers.”   However, section 2 of the staffing service agreement between the defendant and Monroe Staffing states:  “Contractor [Monroe Staffing ] shall be responsible for all aspects of Contract Employees' work performance, including but not limited to, recruiting, hiring, scheduling, promoting, disciplining, wage determination, and OSHA and safety training, provided that said supervision and direction is consistent with the rules and regulations of Pennant Foods.”  (Def.'s Mot. Summ. J. Ex. B.) The agreement goes on to state:  “Contractor [Monroe Staffing] shall be responsible for the payroll, scheduling and disciplinary actions of its employees.”  Id. Thus, the agreement is inconsistent with Greene's affidavit because it states that Monroe Staffing, not the defendant, was responsible for hiring, disciplining, training, supervising, and directing the plaintiff.

Second, Greene attests in paragraphs 13 and 14 of her affidavit that the defendant “obtains employees from Monroe with the intent that they will become permanent employees after 520 hours” and that the defendant “intended to make ․ [the plaintiff] a permanent employee.”   The staffing service agreement, however, is entirely replete of any language which would support Greene's statements.   Although this does not constitute a direct contradiction between the affidavit and the agreement, a question as to Greene's credibility is raised by the absence of any supporting contractual language.

Third, paragraphs 17 and 18 of Greene's affidavit state that the defendant “paid Monroe at a rate that was higher than the amount of compensation ․ [the plaintiff] actually received from Monroe” and that the defendant “understood that this increased rate paid to Monroe for Long's services allowed Monroe to obtain workers' compensation insurance on ․ [the plaintiff's] behalf.”   The staffing service agreement, however, makes no mention of this arrangement.   Rather, section 3 of the agreement states:  “Contractor shall be exclusively responsible for all expenses incurred by Contractor or Contract Employees in connection with this Agreement and no such expenses shall be reimbursed by Pennant Foods.”  (Def.'s Mot. Summ. J. Ex. B.) In addition, according to section 2 of the agreement, the defendant's fee appears to be based solely on hours worked.   Specifically, section 2 of the agreement states:  “Contractor shall submit to Pennant Foods a weekly invoice for the services of its personnel which shall indicate the number of hours, rate per hour, name of employee, and area worked during the previous Sunday through Saturday billing period.”  Id. This is an inconsistency between the affidavit and the agreement, and it, too calls into question Greene's credibility.

Finally, Greene attests in paragraph 5 of her affidavit that the defendant “controlled the means and methods of the plaintiff's daily work.”   This phrasing essentially constitutes the definition of an “employer” under the right to control test.   However, the staffing service agreement contains explicit language disclaiming the defendant as an employer and making Monroe Staffing pay workers' compensation insurance.   Specifically, section 2 of the agreement states, in part:  “Contractor agrees that all Contract Employees provided to the Pennant Foods are employees solely of Contractor [Monroe Staffing], and ․ [a]s the employer of Contract Employees, Contractor acknowledges its exclusive obligation, and agrees, to pay all such taxes and make all such deductions and to pay all wages, salaries and benefits owed to Contract Employees even if Contractor is not paid fees owed to Contractor by Pennant Foods under the terms of this Agreement.”  (Emphasis added.)  Id. Also, section 5 of the agreement states:  “Contractor shall comply with all laws ․ applicable to Pennant Foods ․ including but not limited to:  (i) the provision or payment of workers' compensation insurance ․” Id. Similarly, section 6 of the agreement states:  “Contractor shall carry and maintain Workers' Compensation insurance in statutory amounts.”  Id.

Because Greene's affidavit conflicts with the staffing service agreement in all of the above respects, the defendant has not met its initial burden of establishing that there is no genuine issue of material fact.   The plaintiff therefore has no obligation to submit refuting documents, and the court need not analyze this next step.   Also, the contradictory and unsupported statements in Greene's affidavit call into question Greene's credibility, which creates a question of fact for the trier.   In addition, the issue before the court involves determining the status of a plaintiff as an employee, which is similarly a question for the trier of fact.   Finally, the defendant cannot have it both ways, and should not be permitted to enjoy the benefit of the Workers' Compensation Act employer exclusivity provision when it (1) contractually disclaimed itself as an employer, and (2) assigned multiple employer responsibilities, including workers' compensation insurance payments, to Monroe Staffing.   For all of the above reasons, even if the court were to consider applying the right to control test and dual employer doctrine to the present case, there still remain genuine issues of material fact as to whether the defendant was the plaintiff's employer.   Therefore, summary judgment is inappropriate.

CONCLUSION

For the foregoing reasons, (1) Connecticut law, not Illinois law, applies to the present case;  (2) pursuant to Connecticut General Statutes § 31–292 (the lent employee statute), Monroe Staffing was the plaintiff's employer as a matter of law.   Even if the court were to apply the right to control test and the dual employer doctrine, which it does not, there are genuine issues of material fact as to whether the defendant was the plaintiff's employer.   Accordingly, the defendant's motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. Section 13 of the staffing service agreement states:  “Governing Law. This Agreement shall be governed by the laws of the State of Illinois.”   (Def.'s Mot. Summ. J. Ex. B.).  FN1. Section 13 of the staffing service agreement states:  “Governing Law. This Agreement shall be governed by the laws of the State of Illinois.”   (Def.'s Mot. Summ. J. Ex. B.)

FN2. It should be noted that the Connecticut Practice Series states:  “A consensus seems to be emerging that ․ an outsourced employee cannot sue the de facto employer who controls his work and at whose premises he was working when injured, even though he is being paid by the placement agency.”   19 Conn. Prac., Workers' Compensation § 15:26.   This passage, however, merely represents a trend.   It does not constitute binding or even persuasive authority over this court, which must consider the particular facts of the present case..  FN2. It should be noted that the Connecticut Practice Series states:  “A consensus seems to be emerging that ․ an outsourced employee cannot sue the de facto employer who controls his work and at whose premises he was working when injured, even though he is being paid by the placement agency.”   19 Conn. Prac., Workers' Compensation § 15:26.   This passage, however, merely represents a trend.   It does not constitute binding or even persuasive authority over this court, which must consider the particular facts of the present case.

FN3. The defendant cites:  Doe v. Yale University, 252 Conn. 641, 748 A.2d 834 (2000);  Taylor v. St. Paul's Universalist Church, 109 Conn. 178, 145 A. 887 (1929);  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994);  Crespo v. BAGL, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09502166149 (December 15, 2009, Tobin, J.T.R.) (49 Conn. L. Rptr. 82);  Valliere v. Olmo, Superior Court, judicial district of New London, Docket No. CV 10 6005762 (June 28, 2011, Martin, J.) (52 Conn. L. Rptr. 206)..  FN3. The defendant cites:  Doe v. Yale University, 252 Conn. 641, 748 A.2d 834 (2000);  Taylor v. St. Paul's Universalist Church, 109 Conn. 178, 145 A. 887 (1929);  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994);  Crespo v. BAGL, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09502166149 (December 15, 2009, Tobin, J.T.R.) (49 Conn. L. Rptr. 82);  Valliere v. Olmo, Superior Court, judicial district of New London, Docket No. CV 10 6005762 (June 28, 2011, Martin, J.) (52 Conn. L. Rptr. 206).

Wilson, Robin L., J.