Pacific Insurance Co. v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO SUBSTITUTE PARTY PLAINTIFF (# 112) AND MOTION TO DISMISS (# 116, # 113, and # 124)

I

Procedural History

On July 18, 2013, the plaintiffs, Pacific Insurance Company, Ltd. (Pacific), as a subrogee of Connecticut Reliable Welding, LLC (Reliable Welding),¹ and Reliable Welding, filed a six-count amended complaint against the defendants, Champion Steel, LLC (Champion), Shepard Steel Company, Inc. (Shepard), and Dimeo Construction Company (Dimeo).   The amended complaint added Reliable Welding as a party plaintiff and added three counts.   All six counts sound in common-law equitable subrogation.

The plaintiffs allege the following facts.   On May 17, 2011, an employee of Reliable Welding, James Doughty,² sustained injuries when his retractable life line failed, causing him to fall to the ground.   The fall and subsequent injuries were caused by the negligence of the defendants.   Because Doughty's injuries arose out of and in the course of his employment, Reliable Welding paid benefits to Doughty in accordance with the Worker's Compensation Act.³ Pacific issued an insurance policy to Reliable Welding providing it with workers' compensation coverage.   As a result of said insurance policy, Pacific is subrogated to the rights of Reliable Welding and thusly, the defendants are legally liable to the plaintiffs for the benefits paid and will be caused to pay.

The record reveals the following relevant procedural history.   On July 12, 2013, the defendant Dimeo filed a motion to dismiss the complaint and supporting memorandum.   On July 18, 2013, the plaintiff Pacific filed a notice of filing amended writ and amended complaint as a matter of law, an amended writ and summons, an amended complaint, a motion to substitute party, and a motion to intervene.⁴  On July 19, 2013, the defendant Champion filed a motion to dismiss the complaint and supporting memorandum.   On July 22, 2013, the plaintiff Reliable Welding filed an intervening complaint.   On August 6, 2013, the defendant Shepard filed a motion to dismiss the plaintiff's original complaint, an objection to the motion to substitute party plaintiff and an objection to the motion to intervene.⁵  On September 12, 2013, the plaintiff Pacific filed an objection to all three defendants' motions to dismiss.   On October 1, 2013, the defendant Champion filed a reply to the plaintiff's objection.⁶  On October 15, 2013, the defendant Shepard filed a supplemental memorandum in support of its motion to dismiss.   On October 28, the defendant Dimeo filed a reply to the plaintiff's objection to the motion to dismiss.⁷

II

DiscussionA. Motion to Substitute Plaintiff

“Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).   Nevertheless, the Appellate Court has stated that a trial court is not prohibited from taking the “further step” of considering the merits of a motion to substitute another party as the plaintiff pursuant to General Statutes § 52–109, even though that motion was not filed until after the defendant had filed a motion to dismiss for lack of subject matter jurisdiction on the basis of the plaintiff's lack of standing.  Rana v. Terdjanian, 136 Conn.App. 99, 109, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).   As the court stated, “it is well within the authority of a court to permit a substitution of plaintiffs in lieu of dismissing an action provided that the court determines that the conditions set forth in § 52–109 have been met.   We ․ agree with the reasoning of a number of trial court decisions that have considered the same jurisdictional conundrum now before us that if § 52–109 is to have the ameliorative purpose for which it was intended, then even assuming that the specter of subject matter jurisdiction rears its head, the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs.”  (Citation omitted;  internal quotation marks omitted.)  Id.

In the present case, the plaintiff Pacific moves to substitute itself with the plaintiff Reliable Welding, “in the event the court determines that substitution is necessary for the determination of any matters in dispute.”   The defendants ⁸ counter that the court must address subject matter jurisdiction before proceeding further with the case and that because the plaintiff Pacific is seeking to recover workers' compensation benefits it paid to the intervening plaintiff Doughty, the plaintiff Pacific lacks standing as it is not an employer under General Statutes § 31–293.⁹  In addition, the defendants argue that the plaintiff Pacific cannot rely on the relation back doctrine or the accidental failure of suit to create standing.   Because the plaintiff Pacific's motion to substitute the party plaintiff may have the potential to save the action from dismissal, the court shall consider the motion to substitute party plaintiff on the merits.

General Statutes § 52–109, entitled “Substitute plaintiff,” provides:  “When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff.”  “The two conditions that must be met to invoke the statutory remedy of substitution [under ․ § 52–109] are:  first, that the action was commenced in the name of the wrong person by mistake;  and second, that the proposed substitution is necessary for the determination of the real matter in dispute.”  (Internal quotation marks omitted.)   Lupinacci v. Stamford, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–99–0172376–S (August 7, 2002, Lewis, J.T.R.) (32 Conn. L. Rptr. 672, 679).   “Though the term ‘through mistake’ is not defined within § 52–109, the Superior Court has addressed the issue and inferred that the term means an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence, that [he] is the proper person to commence the lawsuit.   Only if [he] bears the burden of proving that [he] acted upon such a conviction in commencing the lawsuit can the plaintiff's motion to substitute be granted.”  (Internal quotation marks omitted.)  Id. In the present case, the plaintiff Pacific, as the party with the burden of proof, did not argue nor demonstrate that it commenced this action in its own name as a result of a mistake.   Therefore, the plaintiff Pacific has not met the first requirement to satisfy a motion to substitute party plaintiff pursuant to § 52–109.

The second requirement “involves a determination of whether the proposed plaintiff is the real party in interest because [s]ubstitution of the real party in interest to pursue a claim is obviously necessary for the determination of the real issue in dispute whenever the original party lacks standing to pursue it ․ In such circumstances, without the requested substitution, the court would have no subject-matter jurisdiction over the case, and any judgment it might render would be null and void ․ The ‘real party in interest’ with respect to a claim is the true legal owner of the claim—one who has a sufficient legal interest in the claim to have standing to pursue it.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In the present case, the proposed plaintiff is not a real party of interest because as the plaintiff Pacific has asserted, this action sounds in common-law equitable subrogation.  “In its simplest form, subrogation allows a party who has paid a debt to step into the shoes of another (usually the debtee) to assume his or her legal rights against a third party to prevent that party's unjust enrichment ․ In that way, an insurance company, for example, can be substituted for the insured in an action against a third party tortfeasor.   The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer.   The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim.”  (Citation omitted;  internal quotation marks omitted.)  Rathbun v. Health Net of Northeast, Inc., 133 Conn.App. 202, 211, 35 A.3d 320, cert. granted in part, 304 Conn. 905, 38 A.3d 1201 (2012).

The plaintiff Pacific, as an insurance carrier, is asking the court for the plaintiff Reliable Welder, its insured, to step into the shoes of an insurance carrier to assert the insurance carrier's common-law right to equitable subrogation.   This substitution would effectively nullify the plaintiff Pacific's common-law subrogation claim.   In actions where an insurance carrier asserts a claim for common-law equitable subrogation, the insurance carrier steps into the shoes of its insured and assumes the insured's legal rights, not the reverse.   The substitution would necessarily change the cause of action from common-law equitable subrogation to a statutory right to recover under § 31–293 because the plaintiff Reliable Welding would be essentially asserting its own rights as an employer against the third-party tortfeasor and not the common-law subrogation right of the plaintiff Pacific.   Furthermore, such a substitution fails to create standing because an employer cannot pursue a common-law equitable subrogation claim against a third-party tortfeasor.   An employer's “sole means to assert any right against the plaintiff's third party recovery [is] by way of the procedure set forth in § 31–293.”  (Emphasis omitted.)  Libby v. Goodwin Pontiac–GMC Truck, Inc., 241 Conn. 170, 176, 695 A.2d 1036 (1997).   Therefore, the plaintiff Pacific has failed to demonstrate that the plaintiff Reliable Welding is the real party in interest with standing to pursue a common-law equitable subrogation claim.   Accordingly, the plaintiff Pacific has not met either of the two requirements of § 52–109 to successfully substitute the party plaintiff.   Accordingly, the motion to substitute party plaintiff is denied.

B. Motions to Dismiss

“In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”   Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).   “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․ The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings ․” (Internal quotation marks omitted.)   Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).  “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Id., 531.

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).  “If ․ the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.”  (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

The defendants argue that their motions to dismiss should be granted because the plaintiff Pacific does not have standing to assert a claim under either § 31–293 or under common-law equitable subrogation.¹⁰  In addition, the defendant Champion argues, in its supplemental memorandum, that even if the court concludes that the plaintiff Pacific may assert a common-law claim for equitable subrogation, the plaintiff Pacific's claim is barred by the statute of limitations because both the intervening plaintiff Doughty and the plaintiff Reliable Welding have failed to assert a cause of action within two years of the date of the intervening plaintiff Doughty's injury and a subrogee has no greater rights than the individual to which it is subrogated.¹¹  Finally, the defendants argue that the motion to substitute the plaintiff Reliable Welding for the plaintiff Pacific should not be granted as it will not cure the jurisdictional defects aforementioned.

The plaintiff Pacific counters that although it disagrees “with the defendants' jurisdictional challenge raised in the defendants' motions to dismiss,” it filed a motion to substitute party plaintiff to identify the plaintiff Reliable Welding as a party plaintiff consistent with the amended writ and amended complaint.   Further, the plaintiff Pacific contends that the operative complaint was amended as of right to correct any potential defect, mistake, or informality in the original complaint and the operative complaint asserts claims of common-law equitable subrogation and not claims under § 31–293.   Finally, the plaintiff argues that the defendants' reliance on Johndrow v. State, 24 Conn.App. 719, 591 A.2d 815 (1991) is misplaced and that pursuant to Chubb & Sons, Inc. v. Sodexo, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6011665–S (August 2, 2012, Genuario, J.) [54 Conn. L. Rptr. 457], the court should dismiss the defendants' motions on the ground that they do not implicate the subject matter jurisdiction of the court because the original complaint alleged equitable subrogation and not statutory claims under § 31–293.

Our 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., supra, 241 Conn. 174–75.

“The ability of someone other than the injured party, e.g., the employer, to bring or to intervene in an action against a third party is a clear deviation from the common law ․ Consequently, this statutory grant of right must be strictly construed and limited to those matters clearly within its scope.”   (Citations omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 383, 698 A.2d 859 (1997).

In the present case, the plaintiff Pacific claims that the court has subject matter jurisdiction over the present action because the plaintiff Pacific's claim is grounded in common-law equitable subrogation.  “The common-law doctrine of legal or equitable subrogation ․ enables an insurance company that has made a payment to its insured to substitute itself for the insured and to proceed against the responsible third party.”  Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 309 Conn. 449, 455, 72 A.3d 36 (2013).   While the doctrine of common-law equitable subrogation is recognized in Connecticut jurisprudence, the plaintiff Pacific, as the party with the burden of proof, has failed to provide, nor has research revealed, any controlling authority that permits an insurer to seek equitable subrogation from a third-party tortfeasor for workers' compensation benefits paid to its insured outside the statutory scheme set forth in § 31–293.¹²  The plaintiff relies on Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn 362, 672 A.2d 939 (1996),¹³ for its argument that “it is well settled that an insurer is subrogated to the rights of its insured to whom it has paid benefits.”   The issue and circumstances in Westchester, however, arc entirely dissimilar to those presented here.

In Westchester, the issue before the court specifically was “whether an uninsured motorist insurance carrier that has paid underinsured motorist benefits to its insured may bring a subrogation action against the tortfeasor's liability insurer, which, the uninsured motorist carrier contends, wrongfully denied coverage of the insured's claim against the tortfeasor.”  Id., 363.   In the present case, the plaintiff asks the court to expand the doctrine of common-law equitable subrogation beyond the recognized context of uninsured motorist coverage to the presently unrecognized context of workers' compensation.   The wide diversity of settings and varying circumstances in which equitable subrogation may touch upon, however, weighs heavily against applying such a broad generalization to the workers' compensation statutory scheme without any controlling authority.

Further, because the ability of the employer to bring an action against a third party is a clear deviation from common law, this statutory right of the employer embodied in § 31–293(a) must be strictly construed and limited to matters within its scope.   The court is not prepared to expand an insurance carrier's right of common-law subrogation, allowing insurance carriers to assume the statutory rights of an employer under § 31–293 to recover from third-party tortfeasors, as such an expansion would carve out an exception and/or modify the workers' compensation statutory scheme.   See, e.g., Johndrow v. State, supra, 24 Conn.App. 721 (“An insurance carrier does not constitute an employer for the purposes of intervention within the meaning of General Statutes § 31–293” and has “no standing to pursue any cause of action under this section, or to file any motions pertaining thereto”);  Kwalek v. K.W. Griffin, Inc., Superior Court, judicial district of Bridgeport, Docket No. CV–970348108–S (July 18, 2000, Nadeau, J.) (27 Conn. L. Rptr. 564) (holding that an insurance carrier does not have standing to intervene in an action brought pursuant to § 31–293 to exercise the insurance carrier's subrogation rights).

Finally, the plaintiff's reliance on Chubb & Sons, Inc. v. Sodexo, Inc. is misplaced.   Most importantly, the court in Chubb was careful to note that “[t]o be clear, the court is not holding that, as a matter of law, an insurer of workers' compensation benefits may bring a cause of action against a third party who injured an employee of its insured, to whose rights it is subrogated.”  (Emphasis added.)  Chubb & Sons, Inc. v. Sodexo, Inc., supra, Superior Court, Docket No CV–11–6011665–S.   In addition, the court denied the motion to dismiss because the defendant's motion itself mistook the complaint to seek claims under § 31–293 directly.   Here, the defendants, in their supplemental memorandums, acknowledge that the plaintiff is pursuing a cause of action under common-law equitable subrogation.   Therefore, the plaintiff's assertion that the defendants are mischaracterizing the complaint is incorrect.   Accordingly, the plaintiff has not demonstrated that the court has subject matter jurisdiction over a common-law equitable subrogation claim based on an employee's and/or employer's statutory right to recover benefits from a third-party tortfeasor under the workers' compensation act.   Accordingly, the court grants the motion to dismiss the complaint.

III

Conclusion

For the reasons stated, the court denies the motion to substitute party plaintiff on the ground that the motion fails to comply with the two requirements regarding mistake and real party interest pursuant to § 52–109.   The court also denies the motion to dismiss on the ground that the court lacks subject matter jurisdiction over the present action because the plaintiffs do not have standing to assert a common-law equitable subrogation action against a third-party tortfeasor in the context of workers' compensation.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. Stanford Dulaire is doing business as Connecticut Reliable Welding and hereafter will be referred to as Reliable Welding..  FN1. Stanford Dulaire is doing business as Connecticut Reliable Welding and hereafter will be referred to as Reliable Welding.

FN2. James Doughty's motion to intervene as the plaintiff, to which an intervening complaint was appended, was granted on July 3, 2013..  FN2. James Doughty's motion to intervene as the plaintiff, to which an intervening complaint was appended, was granted on July 3, 2013.

FN3. See General Statutes § 31–284(a) et seq..  FN3. See General Statutes § 31–284(a) et seq.

FN4. The plaintiff's amended writ and summons, motion to substitute party, and motion to intervene were all filed in support of the substitution/addition of Reliable Welding as a party plaintiff.   The motion to intervene is not addressed in this memorandum, as its status is rendered moot by this memorandum's submissions..  FN4. The plaintiff's amended writ and summons, motion to substitute party, and motion to intervene were all filed in support of the substitution/addition of Reliable Welding as a party plaintiff.   The motion to intervene is not addressed in this memorandum, as its status is rendered moot by this memorandum's submissions.

FN5. On July 31, 2013, the defendant Champion filed objections to the plaintiff's motion to substitute new party plaintiff and the motion to intervene.   On August 20, 2013, the defendant Dimeo filed an objection to the motion to substitute party plaintiff..  FN5. On July 31, 2013, the defendant Champion filed objections to the plaintiff's motion to substitute new party plaintiff and the motion to intervene.   On August 20, 2013, the defendant Dimeo filed an objection to the motion to substitute party plaintiff.

FN6. Concurrently, the defendant Champion filed a reply memorandum in support of its objection to intervene and objection to motion to substitute party plaintiff.   On October 15, 2013, the defendant Shepard filed a supplemental objection to Reliable Welding's motion to intervene and to the plaintiff Pacific's motion to substitute party plaintiff..  FN6. Concurrently, the defendant Champion filed a reply memorandum in support of its objection to intervene and objection to motion to substitute party plaintiff.   On October 15, 2013, the defendant Shepard filed a supplemental objection to Reliable Welding's motion to intervene and to the plaintiff Pacific's motion to substitute party plaintiff.

FN7. As all three defendants each filed both motions to dismiss and objections to the motion to substitute party plaintiff, hereafter, the defendants will be referred to collectively as “the defendants” where appropriate..  FN7. As all three defendants each filed both motions to dismiss and objections to the motion to substitute party plaintiff, hereafter, the defendants will be referred to collectively as “the defendants” where appropriate.

FN8. As all three defendants' arguments in their objections to substitute party plaintiff significantly overlap, their arguments will be addressed collectively as a whole where appropriate..  FN8. As all three defendants' arguments in their objections to substitute party plaintiff significantly overlap, their arguments will be addressed collectively as a whole where appropriate.

FN9. General Statutes § 31–293 provides in relevant part:  “(a) 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.   If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection.   In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31–284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action.   The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section.   If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery.   If the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second Injury Fund. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable to the injured employee.   If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee.   No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him.   For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit. and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury.   The word ‘compensation,’ as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31–306, payments made under the provisions of sections 31–312 and 31–313, and payments made under the provisions of section 31–284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages.   Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit, and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury.   Notwithstanding the provisions of this subsection, 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 and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.(b) When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers' compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer's workers' compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation.”.  FN9. General Statutes § 31–293 provides in relevant part:  “(a) 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.   If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection.   In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31–284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action.   The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section.   If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery.   If the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second Injury Fund. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable to the injured employee.   If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee.   No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him.   For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit. and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury.   The word ‘compensation,’ as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31–306, payments made under the provisions of sections 31–312 and 31–313, and payments made under the provisions of section 31–284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages.   Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit, and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury.   Notwithstanding the provisions of this subsection, 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 and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.(b) When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers' compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer's workers' compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation.”

FN10. Because all three defendants have filed motions to dismiss on various grounds that mostly overlap, the motions will be addressed collectively as a whole where appropriate..  FN10. Because all three defendants have filed motions to dismiss on various grounds that mostly overlap, the motions will be addressed collectively as a whole where appropriate.

FN11. This argument was set forth only by the defendant Champion in its supplemental memorandum of law..  FN11. This argument was set forth only by the defendant Champion in its supplemental memorandum of law.

FN12. General Statutes § 31–293(a) allows an insurance carrier to recoup the benefits paid to its insured as a result of the negligence of a third-party tortfeasor through attachment of a lien on any judgment in favor of an employee and/or employer pursued in accordance with § 31–293.   See General Statutes § 31–293(a).   This provision does not apply to the present case, however, because it is the insurance carrier who initiated the action, and not the employee and/or the employer..  FN12. General Statutes § 31–293(a) allows an insurance carrier to recoup the benefits paid to its insured as a result of the negligence of a third-party tortfeasor through attachment of a lien on any judgment in favor of an employee and/or employer pursued in accordance with § 31–293.   See General Statutes § 31–293(a).   This provision does not apply to the present case, however, because it is the insurance carrier who initiated the action, and not the employee and/or the employer.

FN13. Notably, Westchester was superceded by statute, evidencing the legislature's intent to restrict the scope of insurance carrier's common-law subrogation rights in various contexts.  “[A]lthough Westchester ․ overruled Berlinski, and held that an insurer has an equitable subrogation right to recover underinsurance motorist payments it has made to its insured, Westchester ․ was itself promptly overruled by the General Assembly.   By Public Acts 1997, No. 97–58, § 4, the legislature eliminated this right of subrogation for underinsured motorist claims.   The effective date of the act applied to any claim or cause of action pending on or brought after March 19, 1996, the date that the Westchester decision was released.   Public Act 97–58, § 5.” (Emphasis added.)   Nuzzo v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV–96–0394015–S (June 28, 1999, Levin, J.) (24 Conn. L. Rptr. 388, 390)..  FN13. Notably, Westchester was superceded by statute, evidencing the legislature's intent to restrict the scope of insurance carrier's common-law subrogation rights in various contexts.  “[A]lthough Westchester ․ overruled Berlinski, and held that an insurer has an equitable subrogation right to recover underinsurance motorist payments it has made to its insured, Westchester ․ was itself promptly overruled by the General Assembly.   By Public Acts 1997, No. 97–58, § 4, the legislature eliminated this right of subrogation for underinsured motorist claims.   The effective date of the act applied to any claim or cause of action pending on or brought after March 19, 1996, the date that the Westchester decision was released.   Public Act 97–58, § 5.” (Emphasis added.)   Nuzzo v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV–96–0394015–S (June 28, 1999, Levin, J.) (24 Conn. L. Rptr. 388, 390).

Wiese, Peter E., J.