Ricardo Gibson v. Gym Doctor, Inc. et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 116

Whether the court should grant the city of Waterbury's motion to strike count fifteen of the plaintiff's complaint on the ground that it is barred by the exclusivity provisions of the Workers' Compensation Act.

FACTS

On August 7, 2013, the plaintiff, Ricardo Gibson, commenced this action by filing a fifteen-count complaint against the defendants, Gym Doctor, Inc., CB Seating, Inc., Dimeo Construction Company, O & G Industries, Inc., Gared Holdings, LLC, and the city of Waterbury (city).¹  In the complaint, the plaintiff alleges the following facts.   On September 18, 2012, the plaintiff, an employee of the Board of Education of the City of Waterbury, was using a “basketball structure” in the gymnasium of Jonathan Reed Elementary School in Waterbury when it collapsed and the backboard landed on top of him.   As a result, he sustained injuries and other losses.

On September 20, 2013, the city filed a motion to strike count fifteen of the complaint, the only count in which the city is named as a defendant, along with a memorandum of law.   The plaintiff filed an objection to the motion on October 17, 2013.   The matter was heard on short calendar on November 12, 2013.

DISCUSSION

“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 challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action ․” (Citations omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).   Nevertheless, a motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 588.

The city argues that count fifteen of the complaint is legally insufficient because it is barred by the exclusivity provisions of General Statutes § 31–284 concerning workers' compensation.   The plaintiff argues that the motion to strike should be denied on two grounds:  (1) a motion to strike is not a proper means to raise a defense of workers' compensation exclusivity and (2) the complaint does not allege that the plaintiff was acting within the course and scope of his employment at the time of injury and, thus, does not fall within the provisions of § 31–284.

“Connecticut's Workers' Compensation Act ․ is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment ․ General Statutes § 31–284(a).²  Under the act's strict liability provisions, workers are compensated without regard to fault.   In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries ․ Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar.”  (Internal quotation marks omitted.)  Jaiguay v. Vasquez, 287 Conn. 323, 328–29, 948 A.2d 955 (2008).  “Under the Workers' Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages.   The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery ․ The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees.”  (Internal quotation marks omitted.)  Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451, 820 A.2d 258 (2003).

Many Superior Court decisions have held that “exclusivity [of § 31–284] should be raised via a special defense, not a motion to strike,” Beaupre v. Connecticut Business & Industry Association, Inc., Superior Court, judicial district of New Britain, docket No. CV–12–6016044S (January 10, 2013, Wiese, J.) [55 Conn. L. Rptr. 342].  “Connecticut appellate courts [however] have not ruled on whether a motion to strike is an appropriate motion by which an employer or employee may raise the exclusivity bar.”   Abendroth [v. Moffo, supra ] [b]oth the Supreme Court and the Appellate Court have ․ reviewed motions to strike [in which the defendant claimed] that the plaintiff elected his or her exclusive remedy under the Workers' Compensation Act without addressing whether the motion to strike was the proper procedural vehicle to raise the claim.”  (Internal quotation marks omitted.)   Balch v. Pioneer Adjustment Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV–13–6036452S (August 14, 2013, Nazzaro, J.) [56 Conn. L. Rptr. 717];  see, e.g., Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 889 A.2d 810 (2006);  Yuille v. Bridgeport Hospital, 89 Conn.App. 705, 874 A.2d 844 (2005);  Melanson v. West Hartford, 61 Conn.App. 683, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).   Some Superior Courts, therefore, continue to decide motions to strike on the basis of the exclusivity provisions of § 31–284, and it is not procedurally improper to do so.   See, e.g., LeFebure v. Antol, Superior Court, judicial district of Hartford, Docket No. CV–126033672S (October 1, 2013, Wagner, J.T.R.) [56 Conn. L. Rptr. 870] (denying motion to strike because plaintiff sufficiently pleaded facts demonstrating injury was substantially certain to result from employer's acts or conduct and exclusivity did not apply);  Hammon v. Hess Corp., Superior Court, judicial district of New London, Docket No. CV–12–60153269S (October 1, 2013, Cole–Chu, J.) (granting motion to strike count two of complaint because of exclusivity of Workers' Compensation Act);  Drozdowski v. Smile Sensations, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6014629S (July 9, 2013, Povodator, J.) [56 Conn. L. Rptr. 483] (granting motion to strike counts four and five because they were barred by § 31–284);  Pagan v. Rodriguez, Superior Court, judicial district of Waterbury, Docket No. CV–12–6016446S (April 15, 2013, Shapiro, J.) (finding allegations insufficient to come within exception to workers' compensation exclusivity and granting motion to strike on that basis).

The court will address the exclusivity issue in the context of the city's motion to strike.   Neither the Supreme Court nor the Appellate Court have addressed whether exclusivity of workers' compensation can be raised in a motion to strike.   However, both the Supreme Court and the Appellate Court have reviewed cases involving this issue, considering the legal sufficiency of such a count or complaint involved in this motion to strike.   See Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 133;  Yuille v. Bridgeport Hospital, supra, 89 Conn.App. 705.   Thus, it is not improper for a Superior Court to consider a motion to strike raising the exclusivity of workers' compensation.   However it is not mandatory to decide such an issue at this stage of the pleadings.

In his complaint, the plaintiff alleges that he was an employee of the city at the time of the incident;  but such incident did not necessarily “arising out of and in the course of ․” The defendant argues that this is sufficient to bring the claim within the general scope of the Workers' Compensation Act. See Marut v. M. Ferrara & Sons, Superior Court, judicial district of New Britain, Docket No. CV–09–5014354S (December 3, 2010, Young, J.).   In this context the plaintiff has taken an ambivalent position that gives him some temporary refuge.   However, the plaintiff may have to make an election of remedies at some point, pre-trial.

Therefore, the defendant's motion to strike is denied at this stage.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. The city filed an intervening complaint on September 19, 2013, in which it alleges that the plaintiff's employment was within the scope of the Workers' Compensation Act and his injuries arose out of and in the course of his employment.   In addition, the city alleges that it may be caused to “expend more monies” to the plaintiff as a result of his injuries.   This intervening complaint is not the subject of the instant memorandum.   Therefore, for purposes of this memorandum, “the city” will refer to the city of Waterbury in its capacity as a defendant and the moving party..  FN1. The city filed an intervening complaint on September 19, 2013, in which it alleges that the plaintiff's employment was within the scope of the Workers' Compensation Act and his injuries arose out of and in the course of his employment.   In addition, the city alleges that it may be caused to “expend more monies” to the plaintiff as a result of his injuries.   This intervening complaint is not the subject of the instant memorandum.   Therefore, for purposes of this memorandum, “the city” will refer to the city of Waterbury in its capacity as a defendant and the moving party.

FN2. Section 31–284(a) states:  “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 ․ but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.   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, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”.  FN2. Section 31–284(a) states:  “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 ․ but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.   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, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.”

Roche, Vincent E., J.