Isabella Abendroth, Individually, as Administratrix of the Estate of Craig Abendroth v. Nicholas Moffo et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 126

I

PROCEDURAL HISTORY

The plaintiff, Isabella Abendroth, the administratrix of the estate of Craig Abendroth, has brought this action against the defendants, Nicholas Moffo and Zysk Bros. Landscaping Inc. (Zysk).  In the complaint filed on March 30, 2012, the plaintiff alleges that Moffo was negligent and Zysk was vicariously liable in causing the decedent's death in a payloader accident in Zysk's parking lot at 24 Brixton Street, West Hartford, Connecticut, at approximately 6:19 a.m. on June 30, 2011.   According to the plaintiff's complaint, Moffo, an employee of Zysk, was operating the payloader, mixing topsoil by transferring it from one pile to another, when he negligently struck and ran over the decedent.

In their answer filed on January 28, 2013, the defendants admit that the decedent had arrived to work at Zysk at approximately 6:19 a.m. and that Moffo, whom the defendants admit was an employee of Zysk, was operating a payloader mixing topsoil at Zysk. The defendants, however, deny that Moffo was negligent and deny that Zysk is vicariously liable to the plaintiff.   Additionally, the defendants raise as special defenses that the plaintiff's claim is barred by the Workers' Compensation Act and that the plaintiff's injuries were caused by his own negligence.   On February 4, 2013, the plaintiff filed a reply to the defendant's special defenses, denying all the allegations therein.

On May 31, 2013, the defendants moved for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff is barred from recovery by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31–293a.   To the motion, the defendants attached the following exhibits:  (1) an affidavit of John Zyskowski, owner of Zysk;  (2) a Connecticut registration certificate listing the payloader as “special mobile equipment”;  (3) the operator's manual for the John Deere 624E Loader;  (4) photographs of the payloader and the 24 Brixton Street property;  (5) an affidavit from Moffo;  and (6) an affidavit from Valerie Frost, a manager at the workers' compensation unit of Travelers.

The plaintiff filed an objection to the motion for summary judgment on July 30, 2013.   In support of her objection, the plaintiff filed the following exhibits:  (1) a police accident report;  (2) portions of a deposition of Officer Brian Cantele;  (3) photographs;  (4) a letter from Edmund R. Sullivan;  (5) a Connecticut registration certificate;  (6) a portion of the operator's manual titled driving the machine;  (7) portions of a deposition of Moffo;  and (8) portions of a deposition of John Zyskowski.   On August 16, 2013, the defendants filed a reply to the plaintiff's objection.   The motion was argued at short calendar on September 23, 2013.

II

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 ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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 ․ 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 ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, 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).

In the present case, the defendants have moved for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff's negligence claims are barred by the exclusivity provision of the Workers' Compensation Act. According to the defendants, there is no genuine issue of material fact that the plaintiff has a right to compensation under the act and that the payloader that injured the plaintiff was special mobile equipment that is not a motor vehicle.   The defendants argue, therefore, that there is no genuine issue of material fact that the plaintiff's negligence action is excluded and does not fall within the statute's exception to exclusion for injuries resulting from a fellow employee's negligent operation of a motor vehicle, entitling them to summary judgment as a matter of law.

In response, the plaintiff contends that there remains a genuine issue of material fact as to whether the accident involved the negligent operation of a motor vehicle because it occurred in a commercial parking lot with more than ten spaces, and, therefore, not at a worksite.   Additionally, the plaintiff contends that, even if the accident occurred on a worksite, four genuine issues of material fact remain, pursuant to Arias v. Geisinger, 126 Conn.App. 860, 868, 15 A.3d 641, cert. denied, 300 Conn. 941, 17 A.3d 476 (2011), as to whether the payloader was a motor vehicle for the purposes of the workers' compensation exclusion exception and that “ultimately, the question of how the payloader truck struck Abendroth in an open commercial parking lot is an issue of fact for the trier.”   In reply, the defendants argue that the “plaintiff ignores the fact that the John Deere loader is ‘special mobile equipment,’ abandons reason in arguing that the injury did not occur at a worksite, improperly relies upon vehicle highway use statutes, cites case law that supports [the] defendants' position, and has still failed to create an issue of fact as to negligent conduct.”

General Statutes § 31–293a provides, in relevant part:  “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent 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.   For purposes of this section, contractors' mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles' if the claimed injury involving such equipment occurred at the worksite on or after October 1, 1983 ․”

General Statutes § 14–1(53), which defines “motor vehicle” for purposes of § 31–293a, provides, in relevant part:  “ ‘Motor vehicle’ means any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, motor-driven cycles as defined in section 14–286, special mobile equipment as defined in section 14–165, mini-motorcycles, as defined in section 14–289j, and any other vehicle not suitable for operation on a highway.”

General Statutes § 14–165(9), which defines “special mobile equipment,” for purposes of § 14–1(53), provides:  “ ‘Special mobile equipment’ means a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including, but not limited to, ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, street sweepers, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment.   The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached.”

In the present case, the defendants have provided the affidavit of Valerie Frost, a manager in the workers' compensation unit of Travelers Insurance, wherein she avers that Zysk carried workers' compensation and employers liability insurance under policy number IFUB–6972W28 and that, under that policy, benefits were paid to the decedent's estate following the incident alleged in this case.   Thus, according to § 31–293a, workers' compensation is the plaintiff's only means of recovery unless his injuries were caused by the wilful or malicious acts of a fellow employee or by the fellow employee's negligence in the operation of a motor vehicle.   As the plaintiff does not allege that the defendants acted wilfully or maliciously, the negligent operation of a motor vehicle is the only applicable exception.   Based on the complaint and the defendant's answer, as well of the affidavit of Zyskowski, the parties agree that the plaintiff was injured by a John Deere payloader operated by Moffo, a fellow employee of Zysk, at Zysk's 24 Brixton Street location at approximately 6:19 a.m. on June 30, 2011.

“The terms ‘bucket [l]oader’ and ‘payloader’ refer to the same type of equipment.”   State v. Riviere, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CR06–0155887–S (October 13, 2006, Nigro, J.T.R.) (42 Conn. L. Rptr. 191, 192);  see also Ferreira v. Pisaturo, 41 Conn.Sup. 326, 339, 574 A.2d 1324 (1989), aff'd, 215 Conn. 55, 573 A.2d 1216 (1990) (“the terms bucket loader and payloader are used interchangeably to describe the same machinery” [internal quotation marks omitted] ).   Bucket loaders are specifically listed as special mobile equipment under § 14–165(9), special mobile equipment is specifically excluded from the definition of “motor vehicle” under § 14–1(53), and § 31–293a requires that, to fall within the motor vehicle exception to the workers' compensation exclusion, the fellow employee's negligence must be in “the operation of a motor vehicle as defined in section 14–1.”   Thus, as there is no genuine issue of fact that Moffo was operating a payloader and payloaders, as special mobile equipment, are not motor vehicles for the purposes of § 31–293a, the defendants have met their burden of showing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law on the ground that the plaintiff's claim is barred by § 31–293a.

The burden then shifts to the plaintiff to present evidence that demonstrates the existence of a genuine issue of material fact.   The plaintiff argues that genuine issues of material fact remain as to whether the accident involved the negligent operation of a motor vehicle because it occurred in a commercial parking lot with more than ten spaces, and, therefore, not at a worksite as required for contractor's mobile equipment under § 31–293a;  whether the payloader was a motor vehicle pursuant to the four-part test put forward in Arias v. Geisinger, supra, 126 Conn.App. 868;  and how the payloader truck struck Abendroth in an open commercial parking lot.   For the reasons stated below, the court concludes that the plaintiff has not presented evidence creating a genuine issue of material fact.

First, the plaintiff's reliance on the statement in Ferreira v. Pisaturo, supra, 41 Conn.Sup. 335, that “ ‘contractor's mobile equipment’ is only not a motor vehicle as long as it is being used at a ‘worksite’ “ is misplaced.   Even if there is an issue of fact as to whether the parking lot was a “worksite” for the purposes of § 31–293a, that issue of fact would not be material because, as discussed above, the payloader is special mobile equipment under § 14–165(9), excluded from the definition of “motor vehicle” under § 14–1(53), and, therefore, excluded from the motor vehicle exception in § 31–293a regardless of whether it meets the definition of “contractor's mobile equipment” in § 31–293a.   Indeed, Ferrerira itself held that the motor vehicle exception did not apply, finding that the payloader in that case was special mobile equipment given that, under § 14–165(9), it was either a “bucket loader” or met the general requirement of “a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway.”  (Internal quotation marks omitted.)   Id., 340–43.   The plaintiff has cited no authority for the proposition that the worksite requirement for being contractor's mobile equipment under § 31–293a is also a requirement for being special mobile equipment under § 14–165(9).

Second, the plaintiff's reliance on Arias v. Geisinger, supra, 126 Conn.App. 868, is also misplaced.   The plaintiff argues that, under Arias v. Geisinger, there are “four critical genuine triable issues of material fact to assess in order to evaluate whether or not the motor vehicle Moffo was operating would be excluded under ․ § 31–293a, 14–1(53), or 14–165(9).”   However, the gravamen of the inquiry in Arias was whether a “trailer” was a “motor vehicle” under § 14–1, and not whether the injury occurred at a worksite, and it is unnecessary for the court to apply all four factors discussed in Arias here.¹  In the present case, as the defendants have shown, there is no genuine issue of material fact that the payloader operated by Moffo was special mobile equipment, one of the enumerated vehicles specifically excluded from the definition of a motor vehicle.   Thus, even if the plaintiff could show that the payloader meets the other three criteria discussed in Arias, there would still be no genuine issue of material fact that the motor vehicle exception does not apply.   Thus, the remaining requirements articulated by Arias are immaterial, and, even under Arias, the defendants are entitled to summary judgment.

Finally, although the plaintiff contends that summary judgment should be denied because “how that payloader truck struck Abendroth in an open commercial parking lot is an issue of fact,” such an issue of fact is not material given that the incident did not involve a motor vehicle.   Even assuming the defendants were negligent in causing the decedent's injuries, workers' compensation would still be the plaintiff's only remedy, barring the present action against the defendants.

The defendants have met their burden of showing that there is no genuine issue of material fact that the plaintiff's negligence claims are barred by the exclusivity provision of the Workers' Compensation Act and that the defendants are entitled to judgment as a matter of law.   Accordingly, the defendants' motion for summary judgment is granted.

III

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted.

BY THE COURT

Gleeson, J.

FOOTNOTES

FN1. The court considered “whether the trailer was (1) suitable for transportation of persons or property, (2) propelled or drawn by any nonmuscular power, (3) suitable for operation on a highway and (4) not one of the enumerated vehicles specifically excluded from the definition of a motor vehicle by any of the aforementioned statutes.”  Arias v. Geisinger, supra, 126 Conn.App. 868..  FN1. The court considered “whether the trailer was (1) suitable for transportation of persons or property, (2) propelled or drawn by any nonmuscular power, (3) suitable for operation on a highway and (4) not one of the enumerated vehicles specifically excluded from the definition of a motor vehicle by any of the aforementioned statutes.”  Arias v. Geisinger, supra, 126 Conn.App. 868.

Gleeson, Marcia J., J.