Opinion
No. CV02-0174296 S
May 20, 2003
MEMORANDUM OF DECISION
At the time of his death, the decedent, Zejadin Dauti, was employed by Lighting Services, Inc., as an electrician. The Stop Shop Supermarket Company is a client of Lighting Services. On September 28, 2000, Mr. Dauti collapsed while completing work at the Stop Shop located at 940 Silver Lane, East Hartford, Connecticut. He later died.
On September 26, 2002, the plaintiffs, Tashgur Dauti, as administrator of the estate of the decedent, Lirije Dauti, wife of the decedent, and Alban Dauti, the minor child of the decedent, filed a four-count complaint against the following defendants: The Stop Shop Supermarket Company, Lighting Services, Inc., Peerless Insurance Company, and Nancy G. Clark, the insurance administrator and benefits coordinator for Lighting Services. The complaint alleges the following claims: wrongful death against Stop Shop (count one); loss of consortium against Stop Shop (count two); interference with receipt of workers' compensation benefits in violation of General Statutes § 31-290c against all defendants (count three); and fraud against all defendants (count four).
General Statutes § 31-290c provides in relevant part: "Any person or his representative who . . . prevents or attempts to prevent the receipt of benefits or reduces or attempts to reduce the amount of benefits under this chapter . . . shall be guilty of a . . . felony . . . Such person shall also be liable for treble damages in a civil proceeding under section 52-564."
On October 6, 2002, Peerless filed an appearance. On October 22, 2002, Stop Stop, Lighting Services and Ms. Clark filed appearances. On November 8, 2002, Peerless filed a motion to dismiss (#102) on the ground that the court lacks subject matter jurisdiction, along with a memorandum of law. On November 12, 2002, the plaintiffs filed an amended complaint. On December 3, 2002, the plaintiffs filed an objection to Peerless' motion to dismiss, along with a memorandum of law. On December 10, 2002, Lighting Services and Ms. Clark filed a motion to dismiss (#113) on the ground that the court lacks subject matter jurisdiction, along with a memorandum of law.
Both the motion to dismiss filed by Peerless and that filed by Lighting Services and Ms. Clark assert that the court lacks subject matter jurisdiction and contain similar arguments. For the purposes of this memo, the motions to dismiss will be addressed collectively.
"[M]otions to dismiss must be made within thirty days of filing an appearance." Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 307, 635 A.2d 843 (1993); see also Practice Book § 10-30. Lighting Services' motion to dismiss was filed beyond the thirty-day time period required by Practice Book § 10-30. Nevertheless, "[a] motion to dismiss for lack of subject matter jurisdiction may be made at any time." Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 203 (1987). See also Practice Book § 10-33. On December 16, 2002, the plaintiffs filed an opposition to Lighting Services' motion to dismiss.
DISCUSSION
As a preliminary matter, because the issue of subject matter jurisdiction was raised in Peerless' motion to dismiss prior to the defendant's amended complaint, the court should consider only the September 26, 2002 complaint, and not the November 12, 2002 complaint, in rendering a decision on this motion. In Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), the Supreme Court held that "it was . . . inappropriate for the trial court to consider [an] amended . . . complaint, rather than the initial complaint, when acting on the state's motion to dismiss for lack of subject matter jurisdiction . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., 99; see also Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991). Accordingly, the court must review the original complaint in deciding on the motion to dismiss.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Id., 52. "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). In ruling on a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998).
The defendants argue that the plaintiffs' exclusive remedy lies within the Workers' Compensation Act, and that because the plaintiffs have not yet exhausted their administrative remedies, the court lacks subject matter jurisdiction to hear any of the claims. According to the defendants, the claims are barred because the Workers' Compensation Act releases an employer from tort liability, as long as that employer carries insurance. See General Statutes § 31-284 (a).
General Statutes § 31-284 (a) provides in relevant part: "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 employee as provided under this chapter . . . All rights and claims between employer who complies . . . and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . ."
The plaintiffs argue that the their claims constitute injuries resulting from the independent action of the defendants, are non-duplicative of the Workers' Compensation Act, cannot be remedied by it and do not arise from the course of employment.
I.
Count One
The plaintiffs argue that count one should not be dismissed because personal injury claims are expressly authorized by both the wrongful death statute and the third person liability provision of the Workers' Compensation Act. See General Statutes §§ 52-555 (a) and 31-293 (a).
General Statutes § 52-555 (a) provides in relevant part: "In any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries, just damages together with the cost of reasonably necessary [expenses] . . ."
General Statutes § 31-293 (a) provides in relevant part: "When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than the 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 for the injury . . ." (Emphasis added.)
"Workers' compensation systems ordinarily are limited to recovery in tort actions for injuries arising in the workplace during the course of employment and compensate employees for such injuries. See Jett v. Dunlap, 179 Conn. 215, 222, 425 A.2d 1263 (1979). In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace." (Emphasis added.) Morocco v. Rex Lumber Co., 72 Conn. App. 516, 520-21, 805 A.2d 168 (2002). See also General Statutes §§ 21-284 (a).
Section 31-284 (a) bars an employer from liability as long as it maintains workers' compensation coverage. The plaintiffs' wrongful death claim is brought only against the defendant Stop Shop, a third party. Section 31-293 of the Workers' Compensation Act explicitly provides that an injured employee may proceed against a third party. The plaintiffs' claim for wrongful death against Stop Shop is not barred by § 31-284 (a).
II.
Count Two
In count two, the plaintiffs allege loss of consortium against Stop Shop. The plaintiffs argue that count two should not be dismissed because it is expressly authorized by General Statutes § 52-555a.
General Statutes § 52-555a provides: "Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death."
"An action for loss of consortium is derivative of the injured spouse's cause of action [and therefore] the consortium claim would be barred when the suit brought by the injured spouse is barred." (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991). In Wesson v. Milford, 5 Conn. App. 369, 498 A.2d 505, cert. denied, 197 Conn. 817, 500 A.2d 1337 (1985), the court held that § 31-284 (a) barred a dependent spouse from bringing an independent cause of action for loss of consortium predicated upon an injury that is exclusively compensable under the Workers' Compensation Act.
As discussed above, the wrongful death claim against Stop Shop is not barred by § 31-284 (a). The claim for loss of consortium against Stop Shop is not barred.
III.
Count Three
In count three, the plaintiffs allege that the defendants interfered with their receipt of workers' compensation benefits in violation of § 31-290c. That statute provides in relevant part that: "Any person . . . who . . . prevents or attempts to prevent the receipt of benefits . . . shall also be liable for treble damages in a civil proceeding under section 52-564." General Statutes § 52-564, the statutory theft provision, provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
The plaintiffs' workers' compensation claim is currently pending before the Workers' Compensation Commission's Fifth District. As the plaintiffs' claim has not yet been denied, the court lacks subject matter jurisdiction to hear the claim for interference with receipt of benefits. See Sanon v. Sedgewick James of New York, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0339158 (May 23, 1997, Skolnick, J.).
IV.
Count Four
In count four, the plaintiffs allege that the defendants acted fraudulently regarding their entitlement to benefits.
"The only cause of action that is `abolished' under the workers' compensation statutes is the direct cause of action by an employee against an employer for personal injury arising out of and in the course of employment." Delpier v. Connecticut Interlocal Risk Management Agency, Superior Court, judicial district of Waterbury, Docket No. CV 01 0164366 (November 28, 2001, Pittman, J.) ( 31 Conn.L.Rptr. 97) (holding that claims for fraud are not barred by § 31-284 (a)). "To be sure, there may be difficulties for a plaintiff who attempts to bring a direct cause of action against an insurer outside the purview of the Commission. In most if not all cases, the plaintiff will need to plead and prove the entitlement to benefits from the insurer, a matter which may be solely a Commission decision. That said, there is no prohibition, in the workers' compensation statutes or elsewhere, against maintaining such an action." (Emphasis added.) Id.
See Viviani v. Powell, Superior Court, judicial district of New Haven, Docket No. CV 96 038941 (December 27, 2000, Owens, J.) ( 28 Conn.L.Rptr. 651); Lewis v. Bourdon Forge Company, Inc., Superior Court, judicial district of Middlesex, Docket No. CV 99 0089115 (February 24, 2000, Gordon, J.) ( 26 Conn.L.Rptr. 429); Silano v. Hartford Underwriters Insurance Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 329388 (September 18, 2000, Rush, J.) ( 28 Conn.L.Rptr. 217); Moran v. Travelers Property and Casualty, Superior Court, judicial district of Fairfield, Docket No. CV 98 350319 (October 23, 1998, Stodolink, J.) ( 23 Conn.L.Rptr. 383).
The plaintiffs' claim for fraud with respect to their entitlement to workers' compensation benefits is not barred by § 31-284 (a).
Conclusion
As to counts one, two and four, the plaintiffs' claims are not barred by the Workers' Compensation Act. As to count three, until the plaintiffs have exhausted their administrative remedies, the court lacks subject matter jurisdiction to hear the claim. Accordingly, the defendants' motion to dismiss is denied as to counts one, two and four, and that the defendants' motion to dismiss is granted as to count three.
Kevin Dubay, J.