Town of Montville v. Kevin Loiler (2013)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

By amended complaint dated February 28, 2012, the plaintiff, the town of Montville, is suing its employee, Kevin Loiler (defendant), for reimbursement of workers' compensation benefits paid by the plaintiff to another of its employees, Robert Tobey, Jr., pursuant to the Workers' Compensation Act, chapter 568 of the General Statutes (Act).   The plaintiff bases its suit on General Statutes § 31–293.¹  Count one of the plaintiff's amended complaint alleges, in essence, as follows.   On March 4, 2010, the plaintiff employed Tobey as a mechanic.   At about 3 p.m. on that day, Tobey was standing in line at the plaintiff's time clock and had put his time card in position to punch out for the day.   The defendant assaulted Tobey by pushing him from behind into the time clock.   The defendant's negligence in pushing Tobey caused Tobey injuries, including an injury to his neck.   Tobey's employment and compensation for his injuries were covered by the Act. The plaintiff has paid money for Tobey's workers' compensation benefits and medical care and may have future obligations to pay more.   In the second count, the plaintiff makes the same allegations except, instead of negligence, it alleges that Tobey's injuries were caused by the defendant's wilful and malicious conduct in that the defendant assaulted Tobey in violation of General Statutes § 53a–60.   The defendant's answer admits only that the plaintiff is a Connecticut municipality.

On November 9, 2012, the defendant filed a motion for summary judgment as to both counts.   The defendant asserts that summary judgment is required because there is no triable issue of fact supporting the plaintiff's claim of wilful and malicious conduct; ²  in the absence of such conduct, Tobey is barred by the Act, particularly General Statutes § 31–293a, from suing the defendant for Tobey's injuries;  and, because the employer's right to sue a tortfeasor depends on the employee having a right to sue that tortfeasor, the plaintiff has no right to seek reimbursement for workers' compensation benefits paid or to be paid.   The defendant provided the following exhibits in support of his motion:  affidavits of the defendant and Tobey, and excerpts of the deposition testimony of Tobey and of Michael Didato, a supervisor employed by the plaintiff, with a copy of Didato's accident investigation report.   Tobey testified, in his affidavit, “I believe that Mr. Loiler was goofing around and trying to get me to punch out early when he pushed me from behind and I have no basis upon which to conclude that Mr. Loiler intended to cause me physical injury.”   See also defendant's motion for summary judgment, exhibit 3, Tobey deposition transcript, p. 29, lines 23–25, and p. 30, lines 2–6.

On February 28, 2013, the plaintiff filed an objection to the motion for summary judgment.   The plaintiff argues that it is not precluded by the Act from seeking recovery from the defendant because, although the Act, particularly § 31–293a,³ restricts the rights of an injured employee to sue a tortfeasor, the Act does not limit the employer's right to sue that tortfeasor.   The plaintiff adopted the affidavits of Tobey and the defendant submitted by the defendant.   The plaintiff argues, “[t]he defendant's actions ․ are a classic case of negligence.”   The plaintiff provided additional excerpts of Tobey's deposition testimony and an affidavit of Camille Chopak, a recovery specialist at Connecticut Interlocal Risk Management Agency, the plaintiff's workers' compensation insurer.

On March 6, 2013, the defendant filed a reply to the plaintiff's opposition.   The motion was argued on April 1, 2013.

FACTS

Viewed in the light most favorable to the plaintiff, and considering the plaintiff's admissions,⁴ the evidence submitted pertaining to the present motion leads the court to find there is no genuine issue as to the material facts of this case.   Specifically, on March 4, 2010, the plaintiff, a Connecticut municipality, employed Tobey as a mechanic.   At about 3 p.m. on that afternoon, Tobey was standing in line at the time clock at the plaintiff's workplace waiting to “punch out”—that is, to have his time card stamped by the time clock.   He had his time card in place to be stamped by the time clock.   The defendant pushed Tobey from behind.   In doing so, the defendant did not intend to hurt Tobey.   The defendant meant to cause him to push his time card into the clock early, as a joke or prank.   In pushing Tobey, the defendant did not act wilfully or maliciously, let alone assault Tobey in violation of § 53a–60.   The push by the defendant did cause Tobey to fall and to suffer one or more injuries, including an injury to his neck.   Tobey's employment and compensation for his injuries were within the Act. The plaintiff and/or its subrogee workers' compensation insurer has paid money for Tobey's workers' compensation benefits and medical care and may have future obligations under the Act to pay more.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, theref6re, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Several statutory provisions are relevant to the disposition of the present motion.   In general, the Act provides in relevant part that “[a]n 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 ․ but an employer shall secure compensation for his employees as provided under this chapter ․ All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees ․ arising out of personal injury ․ sustained in the course of employment are abolished other than rights and claims given by this chapter ․” General Statutes § 31–284(a).⁵

Section 31–293(a) provides in relevant part:  “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury;  and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee ․” (Emphasis added.)

Section 31–293a provides in relevant part:  “If an employee ․ has a right to benefits or compensation under this chapter on account of 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 such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14–1 ․” ⁶

“In addition to allowing an employee to bring a claim against a tortfeasor, § 31–293(a) allows an employer that has paid or become obligated to pay compensation to the injured employee under the Workers' Compensation Act to take action against a third person who is legally liable to pay damages for an injury to an employee ․ We have stated that the employer's right of action under § 31–293 is separate and distinct from the employee's right, noting that it is a right vested in the employer exclusively;  it is not the right of the employee.”  (Citation omitted;  internal quotation marks omitted.)   Doucette v. Pomes, 247 Conn. 442, 468, 724 A.2d 481 (1999).   The Supreme Court concluded that the employer's rights are derivative of the employee's rights, but the employer's claim is separate and distinct from that of the employee's claim.  Id., 467–69.

When § 31–293(a) says an injured employee may claim compensation under the Act without affecting his or her “claim or right of action of the injured employee against such person,” “such person” unquestionably refers to “a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, [who has] a legal liability to pay damages for the injury.”   When § 31–293(a) says an employer, having paid or become obligated to pay compensation under the Act, “may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee,” “such person” means the same, to wit, “a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, [who has] a legal liability to pay damages for the injury.”   The present motion turns on whether the defendant is such a person.

If there was a genuine issue of fact as to whether the defendant's pushing of Tobey was a “wrong [that] was wilful or malicious,” summary judgment would have to be denied because there could be legal liability of the defendant to Tobey, under § 31–293a, to pay damages for the injury resulting from the push, the defendant could be “such person” under § 31–293(a), and the plaintiff could sue the defendant under § 31–293(a).   As the court has found, and as the plaintiff has admitted, there is no such issue of fact.   Therefore, summary judgment must be granted as to count two.

Turning to count one, the court will assume for present purposes that the defendant's pushing of Tobey constituted negligence.   What matters is that there is no triable issue of fact that the pushing was a “wrong [that] was wilful or malicious.”   It was not.   Therefore, the defendant neither had nor has any “legal liability to pay damages for the injury” and the defendant is not “such person” permitted to be sued by the employer for workers' compensation benefits.  General Statutes § 31–293(a).

The state Supreme Court has “repeatedly observed that [the Workers' Compensation Act] represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries.   Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts.”  (Emphasis in original;  internal quotation marks omitted.)  Libby v. Goodwin Pontiac–GMC Truck Inc., 241 Conn. 170, 174–75, 695 A.2d 1036 (1997).

This court finds neither a triable issue of fact that would allow this suit to continue as to count two nor any basis for accepting the plaintiff's interpretation of § 31–293(a) that would allow this suit to continue as to count one.   The defendant's motion for summary judgment is granted.

Cole–Chu, J.

FOOTNOTES

FN1. Paragraph one of both counts of the amended complaint cites § 31–293.   The plaintiff's memorandum in opposition to the present motion relies on subsection (a) of § 31–293, which in pertinent part provides as follows:  “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury;  and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee ․”.  FN1. Paragraph one of both counts of the amended complaint cites § 31–293.   The plaintiff's memorandum in opposition to the present motion relies on subsection (a) of § 31–293, which in pertinent part provides as follows:  “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31–284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury;  and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee ․”

FN2. Plaintiff's allegation is “willful and malicious misconduct.”   A “wrong [that] was wilful or malicious” can be the basis of a suit under General Statutes § 31–293a.   This ruling would be the same if the plaintiff had alleged such a wrong or “wilful or malicious misconduct.”.  FN2. Plaintiff's allegation is “willful and malicious misconduct.”   A “wrong [that] was wilful or malicious” can be the basis of a suit under General Statutes § 31–293a.   This ruling would be the same if the plaintiff had alleged such a wrong or “wilful or malicious misconduct.”

FN3. On page 6 of its memorandum, the plaintiff cites § 31–293(a), but quotes § 31–293a—which has no subsection (a)..  FN3. On page 6 of its memorandum, the plaintiff cites § 31–293(a), but quotes § 31–293a—which has no subsection (a).

FN4. The plaintiff's February 28, 2013, objection tacitly abandons the claim that the defendant's pushing Tobey was wilful and malicious;  the plaintiff claims “there are material questions of fact as to whether Mr. Loiler can be held liable for his negligence pursuant to ․ § 31–293.   This matter is a subrogation claim by the Town of Montville against a negligent tortfeasor for injuries sustained by an employee due to the defendant's negligence.”   The accompanying memorandum (p. 2) adopts the affidavits submitted by the defendant “as they serve to establish the negligent acts of Mr. Loiler in causing the injury to Mr. Tobey.”   At oral argument, plaintiff's counsel expressly abandoned the “wilful and wanton” count..  FN4. The plaintiff's February 28, 2013, objection tacitly abandons the claim that the defendant's pushing Tobey was wilful and malicious;  the plaintiff claims “there are material questions of fact as to whether Mr. Loiler can be held liable for his negligence pursuant to ․ § 31–293.   This matter is a subrogation claim by the Town of Montville against a negligent tortfeasor for injuries sustained by an employee due to the defendant's negligence.”   The accompanying memorandum (p. 2) adopts the affidavits submitted by the defendant “as they serve to establish the negligent acts of Mr. Loiler in causing the injury to Mr. Tobey.”   At oral argument, plaintiff's counsel expressly abandoned the “wilful and wanton” count.

FN5. General Statutes § 31–284(b) provides in relevant part:  “Each employer who does not furnish to the chairman of the Workers' Compensation Commission satisfactory proof of his solvency and financial ability to pay directly to injured employees or other beneficiaries compensation provided by this chapter shall insure his full liability under this chapter, other than his liability for assessments pursuant to sections 31–345 and 31–354 in one of the following ways:  (1) By filing with the Insurance Commissioner in form acceptable to him security guaranteeing the performance of the obligations of this chapter by the employer;  or (2) by insuring his full liability under this part, exclusive of any liability resulting from the terms of section 31–284b, in any stock or mutual companies or associations that are or may be authorized to take such risks in this state;  or (3) by any combination of the methods provided in subdivisions (1) and (2) of this subsection as he may choose, subject to the approval of the Insurance Commissioner.   If the employer fails to comply with the requirements of this subsection, an employee may bring an action against such employer for damages on account of personal injury sustained by such employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․”.  FN5. General Statutes § 31–284(b) provides in relevant part:  “Each employer who does not furnish to the chairman of the Workers' Compensation Commission satisfactory proof of his solvency and financial ability to pay directly to injured employees or other beneficiaries compensation provided by this chapter shall insure his full liability under this chapter, other than his liability for assessments pursuant to sections 31–345 and 31–354 in one of the following ways:  (1) By filing with the Insurance Commissioner in form acceptable to him security guaranteeing the performance of the obligations of this chapter by the employer;  or (2) by insuring his full liability under this part, exclusive of any liability resulting from the terms of section 31–284b, in any stock or mutual companies or associations that are or may be authorized to take such risks in this state;  or (3) by any combination of the methods provided in subdivisions (1) and (2) of this subsection as he may choose, subject to the approval of the Insurance Commissioner.   If the employer fails to comply with the requirements of this subsection, an employee may bring an action against such employer for damages on account of personal injury sustained by such employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained ․”

FN6. The legislative history of § 31–293a includes the following statement of intent:  “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.”  (Internal quotation marks omitted.)   12 H.R. Proc., Pt. 9, 1967 Sess., pp. 3813, 4035, remarks of Representative Paul Pawlak, quoted in Dias v. Adams, 189 Conn. 354, 359 n.3, 456 A.2d 309 (1983)..  FN6. The legislative history of § 31–293a includes the following statement of intent:  “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.”  (Internal quotation marks omitted.)   12 H.R. Proc., Pt. 9, 1967 Sess., pp. 3813, 4035, remarks of Representative Paul Pawlak, quoted in Dias v. Adams, 189 Conn. 354, 359 n.3, 456 A.2d 309 (1983).

Cole–Chu, Leeland J., J.