Salvatore Galaz v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 123.00)

I. INTRODUCTION AND SUMMARY OF FACTS

The following factual and procedural basis for the subject motion is relevant to the court's consideration of this motion.   As alleged in plaintiff's Revised Complaint, dated April 10, 2012, this is an action by plaintiff for injuries which he claims to have sustained when delivering nursery stock for his employer Newman Holdings, LLC d/b/a Planter's Choice (“Planter's”) to the defendant contractor Wojnarowski & Sons Builders, LLC. (“Wojnarowski”).

Plaintiff's revised complaint alleges that Wojnarowski's employees began to unload trees from the delivery truck using a bucket machine with a flat tire, which caused a tree to shift.   Plaintiff alleges that he was injured while attempting to secure the tree and that his injuries were caused by Wojnarowski's negligence, inter alia, for failing to maintain a safe worksite and equipment, using defective equipment, failing to repair or maintain the bucket machine and failing to warn or protect plaintiff.

It is undisputed that plaintiff was employed by Planter's and acting within the scope of his employment delivering the trees and nursery stock when he was allegedly injured.   Planter's paid workers' compensation benefits to plaintiff and intervened to recover these benefits by way of its intervening complaint, dated March 28, 2012.

On May 1, 2013, defendant/cross-claim plaintiff Wojnarowski filed a counterclaim for indemnity against Planter's.   Planter's has filed the subject motion to strike on the ground that the counterclaim fails to sufficiently state a claim against it because Wojnarowski has not alleged an independent legal relationship that is required to establish a prima facie case for indemnification against an intervening employer that has paid workers' compensation benefits.   Thus, Planter's argues, Wojnarowski's claim is barred by the statutory provisions of Conn. Gen.Stat. § 31–284a.   The motion to strike and objection were submitted to the court for decision on the papers on June 24, 2013.

II. STANDARD OF REVIEW

“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).  “ ‘The role of the trial court in ruling on a motion to strike to examine the [counterclaim complaint], construed in favor of the [counterclaim plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.’  (Internal quotation marks omitted.)  Coe v. Bd. of Educ., 301 Conn. 112, 117, 19 A.3d 640 (2011).  ‘In ruling on a motion to strike, the court is limited to the facts alleged in the [counterclaim plaintiff's] complaint.’  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).”   Dutton v. Adams, 2011 Conn.Super. LEXIS 2426 (Conn.Super.Ct. Sept. 26, 2011) [52 Conn. L. Rptr. 650].  “Upon deciding a motion to strike, the trial court must construe the ‘[counterclaim] plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency.’  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).”   Doheny v. Klewin Bldg. Co., 2007 Conn.Super. LEXIS 1040 (Conn.Super.Ct. Apr. 23, 2007).

As stated above, Planter's has moved to strike the defendant's counterclaim for indemnification on the grounds that the pleadings do not establish the requisite independent legal duty between the intervening plaintiff employer and the defendant.   Therefore, even given the most favorable construction, the defendant's indemnity claim is barred by the exclusive remedy provisions of the Workers' Compensation Act, as it fails to allege sufficiently any exception to the well established rule of exclusivity.   In opposition the defendant argues that it has alleged sufficient facts to establish the existence of an independent legal duty between it and the intervening employer.

III. ANALYSIS

“In an action for indemnity ․ one tortfeasor seeks to impose total liability upon another ․ Indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ․” McAuley v. Frederick, 33 Conn. L. Rptr. 622, 2003 Ct.Sup. 350, White, J., citing Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697–98, n.3, 694 A.2d 768 (1997).   Thus, in order to maintain a common law action for indemnity in the context of a tort action, the defendant must allege “1) that the [intervening plaintiff] was negligent;  2) that the [intervening plaintiff's] negligence rather than the defendants'] was the direct, immediate cause of the accident and injuries, 3) that the intervening plaintiff was in control of the situation to the exclusion of the defendants;  and 4) that the [defendants] did not know of such negligence, had no reason to anticipate it and could reasonably rely on the intervening plaintiff not to be negligent.”  McAuley at 351, citing Skuzinski at 698.

When as in the present case, the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer ․ [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 [of the Workers' Compensation Act, General Statutes 31–284] 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 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.”  (Internal quotation marks omitted.)   It is well settled that “[s]tatutory law provides that, for most purposes, workers' compensation payments are the exclusive source of remedy against an injured employee's employer.  General Statutes § 31–284(a) ․ In view of the exclusivity of workers' compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship.  Ferryman v. Groton, 212 Conn. 138, 143–45, 561 A.2d 432 (1989);  Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 545, 107 A.2d 406 (1954).  (Internal citations omitted)” Skuzinski v. Bouchard Fuels, Inc., supra 240 Conn at 699.

In Ferryman, the court reasoned that a simple “active/passive negligence relationship”, is inadequate as a basis to allow a third party, in a suit by an employee, to seek recovery against a contributorily negligent employer, because an employer may not be jointly liable pursuant to the exclusive remedy clause of the workers' compensation statute.  Ferryman v. Groton, 212 Conn. 138, 144 (1989).   There is a limited exception to the general exclusivity rule “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 ․” Id. at 145 (citing 2B A. Larson, Workmen's Compensation Law (1989) § 76).   In cases where the rights of a defendant and an intervening employer compete, the Supreme Court has stated that the court's analysis “is guided by four overlapping principles that inform the rights established by [the workers' compensation statute] § 31–293(a).   First, the statute protects an injured employee by allowing the employee to sue a third party tortfeasor in a private cause of action for damages, such as pain and suffering, that are uncompensated by a workers' compensation award.   Second, the statute protects an employer by allowing the employer to obtain reimbursement for workers' compensation benefits from a third party tortfeasor, either by becoming an intervening plaintiff in the employee's cause of action or by bringing a separate action derivative of the employee's cause of action.   Third, the employer's statutory right to subrogation of the proceeds of the employee's claim against the tortfeasor implements the public policy of preventing double recovery by an injured employee.   Fourth, the employer's statutory right to reimbursement reinforces the public policy that, between the employer and the employee, workers' compensation provides the exclusive remedy for personal injury to the employee ․” (Internal citations omitted).   Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779–80 (1992).

The issue in Durniak on certification from the district court was whether the third party tortfeasor may raise the negligence of the employer as a special defense when the employer has intervened in the personal injury action as a party plaintiff in order to secure the employer's statutory right to reimbursement of workers' compensation benefits.

The Supreme Court's analysis of the purpose of Gen.Stat. 31–293 in Durniak is relevant to the issue before this court.  “The statute unconditionally authorizes reimbursement to the employer if such employer and employer join as plaintiff in such action and any damages are recovered.   It provides for the apportionment of any damages so that the claim of the employer ․ shall take precedence over the claim of the employee in the proceeds of such recovery after the deduction of reasonable and necessary expenditures ․ Although the statute thus recognizes the propriety of some deductions as offsets to the employer's statutory subrogation claim, the statute does not make the employer's negligence a ground for limiting the employer's recovery.”  Id., at 780.   The numerous cases cited by both sides summarize the purpose and effect of the workers' compensation exclusivity provision.   The court relies on this analysis.   The issue on the motion to strike is whether the allegations of the counterclaim state an independent relationship which creates an independent legal duty which is necessary for the exception to apply.

Accordingly, “indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship.”   Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. at 699.  “Although establishing that an implied promise to indemnify or an independent duty existed between proposed third-party plaintiffs and those sought to be impleaded may overcome the workers' compensation exclusivity bar, courts have construed this exception very narrowly ․” (Internal quotation marks omitted.)   Quintana v. Evergreen Nursery, Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0282526 (January 20, 2004, Tanzer, J.);   see also Clyde v. Injectech Engineering, Superior Court, judicial district of Litchfield, Docket No. CV 03 0089575 (April 12, 2004, Pickard, J.) (36 Conn. L. Rptr. 779).

“Connecticut Superior Court case law is divergent concerning what a party has to allege in order to sufficiently plead an independent legal duty that will overcome the exclusivity of the Workers' Compensation Act. One line of cases ․ is based in products liability law and holds that a manufacturer does not impliedly agree to indemnify an employer-buyer for injuries sustained by the buyer's employees nor can an independent legal duty be based on it.   A second line of cases holds that a complaint must allege an independent legal duty distinct from an independent legal relationship in order to overcome the exclusivity of the Workers' Compensation Act. A final line of cases ․ strictly follows the language of Ferryman v. Groton, and holds that the specific allegation that a party breached its duty under a contract to perform work with due care is sufficient to establish an independent legal relationship and a claim for indemnification.   In these cases, the court places special emphasis on the exact language that the contractor failed to perform [the] work with due care.”   Maslansky v. First Assembly of God, Superior Court, judicial district of Danbury, Docket No. CV 01 0343545 (February 25, 2003, White, J.).

In this case, the plaintiff claims that the defendant is liable for injuries he sustained while delivering trees and nursery stock to the defendant contractor's work site.   The defendant's counterclaim against the plaintiff's intervening employer asserts that an independent legal relationship existed between the parties which created a duty that overcomes the exclusivity provisions of C.G.S. 31–293a.   To establish this duty, Wojnarowski relies on the terms of the “Delivery Request Form” for the October 11, 2010 delivery and the two page sales invoice.

The allegations of the counterclaim which are relevant to defendant's indemnity claim are:

At all times material to the above-captioned action, the plaintiff's claimed injuries, to the extent he may prove them, were caused, in whole or in part, by the negligence and carelessness of Planter's Choice in one or more of the following respects:

It contracted and agreed use of its crane truck for this delivery as set forth in its “Delivery Request Form” for Wojnarowski's October 11, 2010 order, but failed to ensure that plaintiff used the crane to deliver the trees and nursery stock from the truck to the ground, despite having the opportunity and obligation to do so;

At all material times herein, Planter's Choice had an independent legal relationship, and duties arising therefrom, with Wojnarowski, including same arising from its agreement and contract to deliver trees and nursery stock and including the terms and conditions set forth in its two-page invoice and one page Delivery Request Form for Wojnarowski's October 11, 2010 order, which include, inter alia, its agreement to utilize Planter's Choice's crane truck when delivering the trees and nursery stock.

Wojnarowski argues that the above language of its counterclaim is sufficient to establish that Planter's had an independent legal relationship, and duties arising therefrom, with Wojnarowski.   Planters argues there is no allegation of a special relationship such as joint property owners, no allegation of an express contractual provision to indemnify, and no allegation of a promise to perform the work with due care.

The issue is whether the obligation to provide a crane truck to facilitate the delivery, gave rise to an independent legal relationship and duty to Wojnarowski.   Defendant has cited eight Superior Court decisions which it claims, have held that allegations similar to, or even less specific than, the above counterclaim adequately plead the fifth element of a common law indemnity claim against an employer.

After reviewing these cases, the court concludes they are largely distinguishable or their facts, which support the existence of an independent legal relationship e.g., veterinary hospital medical contract requiring proper anesthesia, contract to perform services which include debris removal on employer's property, co-ownership between defendant and plaintiff employer, bailor/bailee relationship, common carrier's statutory duty arising out of contract to transport special education students.   Determination of whether the terms of a contract give rise to such an independent legal relationship requires examination of the relevant documents.

Wojnarowski also argues that the employer has relied on facts outside the pleadings and thus the motion to strike is premature.   According to Wojnarowski, Planter's must assert the exclusivity bar of the workers' compensation statute in a motion for summary judgment.

What is necessarily implied by the allegations of a complaint need not be expressly alleged.  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2003).  “Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such a fairly to apprise the adverse party of the state of facts which it is intended to prove.”  Practice Book § 10–2.   Here, Wojnarowski alleged an independent legal duty arising out of both an invoice and the Delivery Request Form. It is not possible to determine whether these documents created an independent relationship as required by law without going outside the pleadings.   Therefore, viewed in the light most favorable to the pleader as required in adjudicating this motion, the motion to strike the counterclaim is necessarily denied.

SOMMER, J.

Sommer, Mary E., J.