Memorandum of Decision — Motion for Summary Judgment

DAVID R. TOBIN, J.

In this case the plaintiff, an employee of Alternative Staffing Solutions d/b/a Admiral Staffing Services (Admiral), claims that he was injured on January 7, 2007 while working on a loading dock on premises owned by defendant, Bagl, LLC (Bagl) and controlled by Bagl's tenant, defendant, Prime Resources Corporation (Prime). In the operative complaint, the plaintiff's amended complaint which was filed on February 27, 2009, the plaintiff claims damages from Bagl in count one and against Prime in count two. Presently at issue is a motion for summary judgment filed by Prime on June 30, 2009 (#117). In that motion, Prime claims that there is no genuine issue of material fact and that Prime is entitled to judgment as a matter of law because Prime was "an employer immune from liability pursuant to Connecticut General Statutes § 31-284."

This case is apparently one of first impression, presenting the issue of whether the defendant should be considered to be the plaintiff's employer for the purposes of the exclusive remedy provisions of the workers' compensation statute.

FACTS

This dispute arises out of a tort action brought by a temporary employee at a facility where the plaintiff had been placed by an employment agency. The operative complaint alleges the following facts. The plaintiff was employed by Admiral, a temporary employment agency, and was injured when working at the premises apparently owned by the defendant Bagl, for which defendant Prime, as tenant, was responsible for the maintenance, safety and control of the premises.

Both counts of the complaint allege that when the plaintiff was working on the loading dock at the premises, he fell when he stepped into a gap of several inches between the loading dock and rear end of a truck. "The plaintiff fell as a result of the defendant's failure and negligence to provide a metal plate/bridge which would span the distance between the loading dock and truck to eliminate such gap. The conditions of the loading dock constituted a hazardous condition, and which condition had existed for a time prior thereto. [The defendant] had notice and knowledge or with reasonable diligence should have had notice and knowledge of such hazardous and defective condition of the loading dock, but wholly neglected to remedy same. [The defendant] owed a duty to persons, patrons and business invitees of the [p]remises, such as the plaintiff, to exercise reasonable care in the maintenance and control of the [p]remises. The injuries sustained by the plaintiff were caused by the negligence and carelessness of the defendant . . ."

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 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "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." Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 601 (1996).

In its motion for summary judgment, Prime argues that "when a temporary employee is assigned to work with an employer and that employer has control over the means and methods of the assigned employee's work, both the temporary employment agency and the employer are `employers' under workers' compensation law. Accordingly, both are afforded immunity under the [a]ct." The defendant further asserts that "it its undisputed that [Prime] controlled the means and methods of plaintiff's work . . . The plaintiff reported to and received work assignments from [Prime], and the plaintiff was instructed, directed and supervised by [Prime's] warehouse managers . . . [the plaintiff's] work assignments were solely related to furthering [Prime's] business . . . In fact, at the time of the incident, [the plaintiff] was unloading [Prime's] materials from a [Prime's] truck on property leased by [Prime]. [Prime] hired [the plaintiff] through Admiral on a temporary basis, but fully intended to hire him permanently at the end of his trial period . . . In light of these facts, there is no issue of fact that Prime had a right to control the means and methods of the plaintiff's job performance."

In his supplemental objection to defendant's motion for summary judgment dated September 14, 2009 (#120), the plaintiff argues that "[t]he plaintiff was an employee of [Admiral], was paid by that entity and received W2s by that entity. That entity furnished the plaintiff to the defendant as a worker for a period of time. At the time of the injury the plaintiff considered himself an employee of [Admiral] and did not know if the job at the defendant business would result in a full-time permanent position. For the purpose of workers' compensation benefits, [Admiral] is considered the plaintiff's employer."

In the defendant's reply, dated September 23, 2009, Prime argues that the plaintiff's objection was untimely and should not be considered; that there are no disputed issues of material fact that Prime controlled the means and methods of the plaintiff's work and that Prime and Admiral were dual employers of the plaintiff. The defendant relies on Latimer v. Administrator, 216 Conn. 237, 250-51 (1990) (finding that an eighty-eight-year-old stroke victim being attended by home health aids was the "employer" of the aids and accordingly responsible for the payment of contributions under the unemployment compensation act) and Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 694-95 (1995) (determining that the plaintiff, as commission of labor, was authorized under General Statutes § 31-72 to sue on behalf of real estate salespersons for unpaid commissions after finding that the commissions were wages and the salespersons were employees). In Tianti, the court reached the conclusion that the salespersons were employees notwithstanding an admission by one of the salepersons that she considered herself to be an independent contractor. The defendant argues that "[w]hether a party is an employer for purposes of workers' compensation is determined by the right to control test, not the employee's subjective beliefs."

General Statutes § 31-284(a) provides: "An employer . . . 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 or on account of death resulting from personal injury so sustained, 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." Under the statute, "an employer that complies with the requirements of the workers' compensation laws shall not be liable for any action for damages on account of personal injuries sustained by an employee arising out of and in the course of employment." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450-51 (2003). "Because only employees are entitled to compensation under the [workers' compensation] act, it is clear that coverage must arise from a contract of employment, either express or implied." Blancato v. Feldspar Corp., 203 Conn. 34, 38 (1987).

The issue presented in this case is whether Prime was the plaintiff's employer and therefore immune from liability pursuant to General Statutes § 31-284(a). To determine whether Prime is entitled to that status, the court must consider the tests which have been applied to determine the existence of an employer-employee relationship.

I. "Employer" and "Right-to Control" Test

General Statutes § 31-275(10) defines "employer" as "any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay . . ." The Supreme Court has found that "[t]he right to control test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 680-81 (2000). "The right to control test, utilized in this state [to determine employment relationship], has been described as follows: One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained . . ." (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 45 Conn.App. 441, 443-44 (1997), aff'd, 245 Conn. 613 (1998).

Appellate courts' discussions of the "right to control" test generally relate to the distinction between an employee and an independent contractor. Nonetheless, these discussions supply useful factors to consider with regard to an employer's right to control when determining an employer-employee relationship. "It has long been established that [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work . . . The test of the relationship is the right to control." (Citations omitted; internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 696-97. "The determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive." (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639 (1990). "While the method of paying by the hour or day rather than by a fixed sum is characteristic of the relationship of employer and employee, it is not decisive. Nor is it decisive that the injured party uses his own tools and equipment. The retention of the right to discharge, upon which the finding is silent, is a strong, but again not a controlling, indication that the relationship is one of employment. An independent contractor has the right to complete his contract in the absence of breach on his part. We further point out that actual control or direction is not the test, significant though it may be. The real test is whether the employer has the right to direct." (Citations omitted.) Bourgeois v. Cacciapuoti, 138 Conn. 317, 321 (1951).

The affidavit of Marilyn Caraballo, Prime's Human Resources Generalist, (Exhibit A to the motion for summary judgment) asserts that the plaintiff reported directly to Prime and received his work assignments from Prime and was supervised by Prime employees. The plaintiff did not submit any materials raising an issue of material fact with respect to those assertions.

II. Dual-Employment Doctrine

According to courts in many jurisdictions, an individual may have more than one employer at a given time. Courts refer to this concept as the dual-employment doctrine, which provides that when an employee is simultaneously employed by two employers, as a matter of law, each is his employer. Many jurisdictions accept this doctrine — both for cases involving workers' compensation statutes and otherwise.

It is unclear whether Connecticut courts accept the dual-employment doctrine.

Eighty years ago, the Supreme Court found that "one may hold the legal relation of employee to more than one employer at the same time." Taylor v. St. Paul's Universalist Church, 109 Conn. 178, 182 (1929). However, the Connecticut Appellate and Supreme Courts have not made a clear-cut determination as to whether Connecticut accepts the dual-employment doctrine, and Connecticut Superior Courts disagree regarding this issue. In Moreno v. Thermospas, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0158226 (March 13, 2001, Doherty, J. ( 29 Conn. L. Rptr. 97), the court stated that "Connecticut does not appear to have adopted a `dual employee' standard for those persons who work through a temporary employment agency." In that case, the court found that there were material issues of fact concerning the employment status of the plaintiff which precluded the granting of the defendant's motion for summary judgment on the basis of the immunity established under General Statutes § 31-284(a).

On the other hand, in Hodgate v. Ferraro, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 05 4034694 (August 5, 2008, Shapiro, J.), the court cited with approval Larson's treatise on workers' compensation in its discussion of joint employment and dual employment: "In 2 A. Larson and L. Larson, Larson's Workers' Compensation (Desk Edition 2007) (Larson) § 68.01, pages 68-1-68-2, the treatise explains that both of an employee's employers may be liable for workers' compensation regardless of whether the employment is characterized as joint employment or dual employment: `Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the services for each employer is the same as, or is closely related to, that for the other. In such a case both employers are liable for workers' compensation. Dual employment occurs when a single employee, under contract with two employers, and under the separate control of each performs services for the most part for each employer separately, and when the service for each employer is largely unrelated to that for the other. In such a case, the employers may be liable for workmen's compensation separately or jointly, depending on the severability of the employee's activity at the time of injury.' . . . As the treatise notes, the classification of employment as `joint' or `dual' is an arbitrary one, used to sort out varied cases. Larson § 68.01, page 68-1." Hodgate v. Ferraro, supra, Superior Court, Docket No. X04 CV 05 4034694.

Although case law in Connecticut does not clearly establish the dual-employment doctrine with respect to workers' compensation, the appellate courts in other jurisdictions, which have addressed the issue, have universally approved the doctrine.

The Supreme Court of Arkansas discussed the dual-employment doctrine in the context of temporary or leased employees as follows: "The [defendant temporary employer] cites the dual employment doctrine in support of its contention that while [the plaintiff] was [the employment agency's] employee he was also employed by the [defendant temporary employer] as a matter of law and, therefore, the exclusive remedy provisions of the [workers'] [c]ompensation [a]ct bar recovery . . . Employment may also be `dual' in the sense that, while the employee is under contract of hire with two different employers, his activities on behalf of each employer are separate and can be identified with one employer or the other." (Citations omitted; internal quotation marks omitted.) Daniels v. Riley's Health Fitness Centers, 310 Ark. 756, 840 S.W.2d 177, 178 (1992).

Similarly, the Court of Appeals of Mississippi explained: "The concept of dual employment and the doctrine of borrowed servant have long been accepted by Mississippi . . . Mississippi has long embraced the concept of `dual employment'; thus, when an employee is engaged in the service of two . . . employers in relation to the same act (dual employment), both employers are exempt from common law liability, although only one of them has actually provided [workers'] compensation insurance . . . Summary judgment is appropriate where a temporary employment agency assigns an employee to another employer and the employee performs the normal work of the second employer and is controlled and supervised by that employer. In Mississippi, one may be employed by more than one employer and both employers gain immunity from common-law negligence actions." (Citations omitted; internal quotation marks omitted.) Colbert v. Mississippi Marine Corp., 755 So.2d 1116, 1123 (Miss.App. 1999).

In a case arising in the Appellate Division of the Supreme Court of New York, the court noted that "[i]t is well settled that a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits . . . A special employee is one who is transferred to the service of another for a limited period of time of whatever duration. General employment is presumed to continue in the absence of clear proof of surrender of control by the general employer and the assumption of control by the special employer." (Citations omitted; internal quotation marks omitted.) Huggan v. Brookdale Hospital, 12 Misc.3d 97, 820 N.Y.S.2d 388, 389 (2006).

The Maryland Appellate Court also acknowledged that "[a] worker may simultaneously be the employee of two employers." Whitehead v. Safeway Steel Products, 304 Md. 67, 79, 497 A.2d 803 (1985). In addition, the Utah Supreme Court has held that "[a]n employee, for the purpose of [workers'] compensation, may have two employers." Kinne v. Industrial Commission, 609 P.2d 926, 928 (Utah 1980).

III. Exclusive Remedy Provision for Temporary Employers CT Page 1122

Other jurisdictions addressing the issue presently before the court have held that a temporary employer is immune from liability under the exclusive remedy provision of the workers' compensation statute when the temporary employer has the right to control the temporary employee. As such, most jurisdictions presented with this issue have granted summary judgment in favor of temporary employers who seek immunity, under workers' compensation statutes, from lawsuits brought by temporary employees in which there is a clear employer-employee relationship between the parties based upon a right-to-control analysis.

In cases in which courts have denied summary judgment, there are invariably factual issues regarding the existence of an employer-employee relationship arising out of the degree to which the putative employer had the right to control the putative employee. For example, in Marcoux v. Parker Hannifin/Nichols Portland Division, 205 ME 107, 881 A.2d 1138, 1144 (2005), the Supreme Court of Maine found that "because disputed facts exist as to whether [the temporary employer] exercised direction and control over [the plaintiff], the issue of [the plaintiff's] employment status is a disputed question of fact to be resolved by the fact-finder." That case differs from the present dispute because the plaintiff in Marcoux was a "full-time service manager for [a temporary employment agency]," Id., 1140, whereas in the present dispute, the plaintiff was sent by an employment agency to fill temporary employment positions. The operative issue in that case was whether the plaintiff was under the direction and control of the temporary employer — the plaintiff claimed that she did not work under the direction and control of the temporary employer, whereas the temporary employer argued that the plaintiff did work under its direction and control. The court explained that "the legislative history of section 104 [immunity as applied to the temporary employees of third party employers] establishes that the [l]egislature intended that a [third] party employer's immunity from suit by a temporary employee is subject to the requirement that the temporary employee was one who was subject to the direction and control of the [third] party employer." Id., 1142-43.

The court denied summary judgment because "disputed facts exist[ed] with regard to the degree of direction and control [the temporary employer] exercised over [the plaintiff]. For instance, [the temporary employer] and [the plaintiff] disagree as to whether [the employment agency] and [the temporary employer], or just [the employment agency], determined [the plaintiff's] work schedule; whether [the temporary employer] exercised the same amount of control over [the plaintiff] as it did over other [temporary] employees at its site; whether [the employment agency] and [the temporary employer], or just [the employment agency], determined [the plaintiff's] job duties as the on-site coordinator; whether [the employment agency] or [the temporary employed paid [the plaintiff's] salary; and whether [the temporary employer] interviewed or otherwise selected [the plaintiff] for the on-site coordinator position. Thus, the question of [the plaintiff's] employment status is for the fact-finder to resolve." Id., 1143.

IV. Exclusive Remedy Provision for Temporary Employers in Connecticut

Despite the lack of Connecticut precedent, a review of case law in other states demonstrates a general acceptance of the principle that an individual may have two employers at a given time and that in the context of temporary employment, exclusive remedy provisions of workers' compensation statutes apply to temporary employers who are deemed "employers," under a right-to-control analysis. Courts often cite to Larson's treatise when deciding matters related to the exclusive remedy provision of workers' compensation statutes as applied to temporary employers. The court finds that the test provided in Larson's treatise to determine whether one has the status of an employer is the appropriate test to apply to the issue presented in this case.

The Larson test is stated as follows: "When a general employer lends an employee to a special employer, the special employer becomes liable for [workers'] compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for [workers'] compensation." 1C Larson, Workmen's Compensation § 48.00 (1982).

The facts in this case make it clear that the first consideration under the Larson test was met. The plaintiff had an implied contract with Prime under which he was employed at Prime's facility in the capacity of a day laborer under the supervision and direction Prime's managers in exchange for monetary compensation pursuant to his employment. Although Admiral and Prime may have had a written contract to which the plaintiff was not a party, the facts of this case mandate the conclusion that an implied contract between the plaintiff and Prime existed.

The second and third considerations of the Larson test were also met. The plaintiff's work assignments were solely related to furthering Prime's business. At the time of the incident, the plaintiff was unloading Prime's materials from a truck used by Prime on property leased by Prime. It its undisputed that Prime controlled the means and methods of the plaintiff's work. The plaintiff reported to and received work assignments from Prime, and the plaintiff was instructed, directed and supervised by Prime's warehouse managers. Because all of the elements outlined in Larson's treatise are met, it is manifest that Prime was the plaintiff's employer for the purposes of § 31-284(a).

CONCLUSION

In light of the foregoing analysis, the court finds that the dual-employment doctrine applies in the state of Connecticut, that Prime is considered to be the plaintiff's employer for purposes of § 31-284(a) and accordingly is entitled to immunity under that statute. Defendant Prime's motion for summary judgment is accordingly granted.