Opinion
No. NNI CV-085003818S
October 17, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#139)
This action arises out of an accident that allegedly occurred as a result of the negligence of the defendant, Kenneth Gilbert, on the property of the defendant, Infra-Metals Co., located at 8 Pent Highway in Wallingford. On July 10, 2008, the plaintiff, Ezekiel Majak, filed a one-count complaint against the defendants, Gilbert and Infra-Metals. In his one-count amended complaint, the plaintiff alleges that, on August 21, 2007, while operating a "tractor trailer truck" in the designated travel lane of the property, he was injured when an I-beam located in the "trailer cargo bed" crashed into the cab of his vehicle after a "tractor trailer" operated by Gilbert backed into the travel lane forcing the plaintiff "to swerve and slam on his brakes in an effort to avoid a collision." The plaintiff further alleges that both vehicles were owned by Infra-Metals and, at all times, Gilbert was operating his vehicle as the agent, servant or employee of Infra-Metals within the scope of his duties pursuant to General Statutes § 52-183.
Gilbert and Infra-Metals are the only defendants in the case and, when referred to collectively, will be referred to as "the defendants."
On February 10, 2009, the plaintiff filed a request to amend his complaint along with an amended complaint. Because the defendants have failed to object to the request to amend, it is submitted that the amended complaint is the operative complaint. See Practice Book § 10-60.
On September 11, 2008, the defendants filed an answer and ten special defenses. In particular, the defendants' tenth special defense alleges that the plaintiff's action is barred by the Workers' Compensation Act (WCA), General Statutes § 31-275 et seq. On October 8, 2010, the defendants filed a motion for summary judgment on the ground that the plaintiff's claims against the defendants are specifically barred by the exclusivity provisions of the WCA and do not fall within its motor vehicle exception. The motion is accompanied by a memorandum of law. On January 13, 2011, the plaintiff filed an objection to the defendants' motion and a memorandum of law in support thereof. On April 11, 2011, the plaintiff filed a supplemental memorandum. On May 13, 2011, the defendants filed a reply to the plaintiff's objection. The matter was heard at short calendar on July 11, 2011.
DISCUSSION
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Moreover, the "court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 791.
"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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendants argue that the plaintiff's claims are barred by the exclusivity provisions of the WCA, namely, General Statutes §§ 31-284(a) and 31-293a, and that the motor vehicle exception set forth in § 31-293a is inapplicable because the vehicle operated by Gilbert was not a motor vehicle within the purview of General Statutes § 14-1. Even assuming that the vehicle operated by Gilbert was a motor vehicle, the defendants argue that the plaintiff's claims against Infra-Metals are barred by § 31-284(a) because the motor vehicle exception set forth in § 31-293a does not apply to employers.
In support of their motion, the defendants submitted the following evidence: (1) the affidavit of Gilbert, dated October 7, 2010; (2) the affidavit of Michael Cei, a mechanical engineer who provides expert opinions in accident reconstruction, dated October 6, 2010; (3) the affidavit of Mary Jo McCarthy, human resources and safety manager for Infra-Metals, dated October 7, 2010; (4) a copy of excerpts from the deposition transcript of the plaintiff, dated September 16, 2010; (5) a copy of an industrial permit from the department of transportation; and (6) the supplemental affidavit of Cei, dated May 10, 2011, with a certificate of origin and build order for a vehicle attached thereto.
The plaintiff counters that there exists a genuine issue of material fact as to whether the vehicle operated by Gilbert was a motor vehicle under § 14-1. Furthermore, the plaintiff argues that Infra-Metals, as the owner of the vehicle, is liable for Gilbert's negligence pursuant to § 52-183, which provides for a presumption of an agency relationship between the owner and operator of a motor vehicle. In this regard, the plaintiff contends that it is entitled to uninsured or underinsured motorist benefits.
In support of his objection, the plaintiff submitted the following evidence: (1) a copy of a judicial transcript before J. Fischer, J., dated February 2, 2009; (2) the affidavit of the plaintiff, dated January 11, 2011; (3) a copy of a case report from the Wallingford police department, dated August 25, 2007; (4) a copy of excerpts from the deposition transcript of Gilbert, dated November 23, 2010; (5) a copy of Gilbert's notice of compliance with the plaintiff's demand for interrogatories, dated March 10, 2009; (6) a copy of excerpts from the deposition transcript of McCarthy, dated November 23, 2010; (7) a copy of a letter from Attorney William Elder, dated November 3, 2010; (8) the defendants' objection to the plaintiff's motion for inspection, dated November 4, 2010; (9) the affidavit of Irving Ojalvo, dated January 11, 2011; (10) a copy of two motor vehicle registration certificates from the department of motor vehicles; (11) a tax bill from the town of Wallingford, dated June 25, 2007; (12) a copy of portions of an operators' manual for an Ottawa Commando vehicle; (13) a copy of a letter from Erik Moore, client representative for Marsh USA, Inc., dated July 13, 2007; and (14) a copy of excerpts from the deposition transcript of McCarthy, dated March 4, 2011.
The defendants reply that they were not provided notice of the plaintiff's claim pursuant to § 52-183, and that, even if the plaintiff had provided the defendants with notice thereof, it is the employer-employee relationship between the plaintiff and Infra-Metals that drives the analysis and not the relationship between Infra-Metals and Gilbert as the owner and operator of a vehicle.
"Our Workers' Compensation Act . . . is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment." Arias v. Geisinger, 126 Conn.App. 860, 864, 15 A.3d 641, cert. denied, 300 Conn. 941, 17 A.3d 476 (2011); see also General Statutes § 31-284(a). "Under the act's strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar." Arias v. Geisinger, supra, 864.
Section 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 employees as provided under this chapter . . . All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury or death sustained in the course of employment are abolished . . ."
Nevertheless, 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 [General Statutes § 14-1 . . ."
Section 14-1(52) "defines motor vehicle broadly as meaning any vehicle propelled or drawn by any nonmuscular power, but excepts various vehicles named specifically . . . and any other vehicle not suitable for operation on a highway." (Emphasis added; internal quotation marks omitted.) Pinheiro v. Board of Education, 30 Conn.App. 263, 269, 620 A.2d 159 (1993). "It is . . . the vehicle's design that controls in determining whether a particular vehicle is suitable for operation on a highway and qualifies as a motor vehicle . . . Consequently an automobile that is not registered because its equipment is in disrepair . . . is still a motor vehicle for purposes of § 14-1 and is still suitable for operation on a highway, although perhaps not permitted to be so operated until necessary repairs are made, because it is an automobile by design." (Citation omitted; emphasis in original.) Id., 272-73.
Section 31-293a, however, "does not authorize [a] plaintiff's action against his employer arising out of a fellow employee's negligent operation of the employer's motor vehicle." Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 332, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000); see also Hoyt v. Second Taxing District, 183 Conn. 508, 439 A.2d 428 (1981); Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 423 A.2d 77 (1979). "While it is true that employers are generally liable for the actions of their employees, we cannot conclude that the legislature intended employees and employers to be treated alike for the purposes of § 31-293a." Szczapa v. United Parcel Service, Inc., supra, 331. To conclude that an employer should be liable as the owner of a motor vehicle under § 31-293a "would contradict what [the legislature] had clearly and unambiguously stated in § 31-284." (Internal quotation marks omitted.) Id.
In the present case, there remains a genuine issue of material fact as to whether the vehicle operated by Gilbert is a motor vehicle within the purview of § 14-1. "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 . . . 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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.
The defendants have failed to meet their burden. Upon review of the documents submitted to the court, there are material issues of fact concerning the nature of the vehicle operated by Gilbert. In particular: (1) there is a discrepancy between the vehicle identification number listed on the motor vehicle registration certificates and that listed on the certificate of origin; (2) there is a discrepancy between the model of the vehicle operated by Gilbert and the model examined by the defendants' expert, Michael Cei; and (3) there is no evidence concerning "necessary" equipment that is lacking from the vehicle operated by Gilbert but instead evidence concerning "necessary" equipment that is lacking from a separate vehicle owned by Infra-Metals. This evidence was submitted despite the fact that counsel for the defendants represented at short calendar that the vehicle operated by Gilbert was in the possession of Infra-Metals. In light of this revelation, and in light of the discrepancies in the evidence, the defendants have failed to "make a showing that it is quite clear what the truth is" concerning the nature of the vehicle operated by Gilbert. Therefore, pursuant to §§ 31-293a and 14-1(52), Gilbert is not entitled to summary judgment.
Nevertheless, with regard to Infra-Metals, it is not necessary for this court to determine whether or not the vehicle operated by Gilbert was a motor vehicle within the purview of § 14-1, because Infra-Metals is entitled to summary judgment pursuant to Szczapa. In Szczapa, the Appellate Court clearly indicated that claims against an employer are barred by § 31-284(a) because § 31-293a "does not authorize [a] plaintiff's action against his employer arising out of a fellow employee's negligent operation of the employer's motor vehicle." Szczapa v. United Parcel Service, Inc., supra, 56 Conn.App. 332. That is the situation here. The presumption of an agency relationship under § 52-183 is irrelevant. To conclude that an employer should be liable as the owner of a motor vehicle under § 31-293a "would contradict what [the legislature] had clearly and unambiguously stated in § 31-284." (Internal quotation marks omitted.) Id., 331.
Section 52-183 provides in relevant part: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment . . ."
The plaintiff argues in its objection to the defendants' motion for summary judgment that it is entitled to uninsured or underinsured motorist benefits from Infra-Metals pursuant to authority set forth in Conzo v. Aetna Ins. Co., 243 Conn. 677, 705 A.2d 1020 (1998). The plaintiff has failed, however, to allege a claim for uninsured or underinsured motorist benefits in his original complaint or amended complaint. Furthermore, in Conzo, the Supreme Court concluded that "an employee who is injured in the course of his employment while occupying a motor vehicle owned by his employer is entitled under [General Statutes] § 38a-336(f) to uninsured motorist benefits from his or her self-insured employer." (Emphasis added.) Id., 686. Conzo does not consider the situation where an employer is insured by a commercial insurer. The evidence in the present case indicates that Infra-Metals had blanket insurance coverage on its vehicles from Greenwich Insurance Company. Section 38a-336(f) provides: "Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage." In Reliance Ins. Co. v. American Casualty Co. of Reading Pennsylvania, 238 Conn. 285, 291, 679 A.2d 925 (1996), the Supreme Court concluded that "an employee is not barred from recovering uninsured motorist coverage benefits against his or her employer's insurer in regard to a motor vehicle accident . . ." (Emphasis added.) Therefore, any claim for uninsured or underinsured motorist benefits must lie against Greenwich Insurance Company. See Pouncey v. Anastasio Sons Trucking, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 0255439 (April 24, 1998, Dorsey, J.T.R.) ( 22 Conn. L. Rptr. 62).
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment as to Gilbert is denied and the defendants' motion for summary judgment as to Infra-Metals is granted.