Opinion
No. CV 03 0483125
April 2, 2004
On October 21, 2003, the plaintiff, Gallicchio Trucking Company, filed a one-count complaint against the defendants, Douglas Pierpont and Tilcon Connecticut, Inc. This action arises out of a collision between a dump truck operated by Ralph Sansone, an employee of the plaintiff, and a loader operated by Pierpont and owned by his employer, Tilcon.
The complaint alleges that on or about April 29, 2002, Pierpont backed up his loader into the front of Ralph Sansone's dump truck. Ralph Sansone sustained injuries and losses as a result of the collision. The complaint alleges that his injuries and losses were the result of Pierpont's negligence and carelessness, both at common law and pursuant to General Statutes §§ 14-243(a) and 14-243(b). Consequently, the complaint alleges that the plaintiff, as Ralph Sansone's employer, has or may become obligated to provide him with medical attention and has paid or may become obligated to pay sums in the future on account of his injuries in accordance with the Workers' Compensation Act. The complaint further alleges that, pursuant to General Statutes § 31-293(a), the plaintiff is entitled to recoup all workers' compensation benefits that it has paid or may become obligated to pay to or on behalf of Ralph Sansone, and all benefits that it will have to pay to or on behalf of him in the future, including the present worth of any probable future payments that it has become obligated to pay.
The defendants have filed a motion for summary judgment on the grounds that no genuine issues of material fact exist and that the defendants are entitled to judgment as a matter of law. The defendants argue that the plaintiff waived its right to bring the present cause of action or any future cause of action against the defendants because the plaintiff failed to intervene in Ralph Sansone's underlying action against the defendants within thirty days as required by § 31-293(a) and that the plaintiff is not exempt from the thirty-day intervention requirement.
The plaintiff has filed a memorandum of law in opposition to the defendants' motion for summary judgment. The plaintiff argues that the defendants are not entitled to judgment as a matter of law because the plaintiff possesses a statutorily created right pursuant to § 31-293(a), as amended by No. 93-228, § 7, of the 1993 Public Acts, to file the present independent action to recover pursuant to its workers' compensation lien, despite its failure to intervene timely in the underlying action.
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. It is also settled that "[i]n 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.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
The defendants assert that Ralph Sansone brought an action against the defendants in September 2002, for injuries arising out of the accident on April 29, 2002. (See Sansone v. Pierpont, Superior Court, supra, Docket No. CV 02 0468912.) The defendants argue that the plaintiff, as Ralph Sansone's employer, received adequate notice of the underlying action, yet failed to intervene within thirty days as required by § 31-293(a). The defendants argue that the plaintiff is barred from asserting all claims for reimbursement of workers' compensation sums paid or anticipated to be paid to Sansone because the plaintiff forfeited any and all causes of action against the defendants by failing to intervene in the underlying action within thirty days. The defendants rely on Worsham v. Greifenberger, 242 Conn. 432, 698 A.2d 867 (1997), for the proposition that an employer confronted with notice of an employee's suit against a third party has two options with respect to its own right of action against the third party. The employer may either "(1) move immediately to intervene in the action; or (2) do nothing before the thirty day period for action expires and lose the claim forever." (Emphasis added.) Worsham v. Greifenberger, supra, 242 Conn. 440. The defendants argue, therefore, that the plaintiff has forever waived its right to assert claims against the defendants and may not resuscitate those claims by commencing an independent cause of action after the expiration of the thirty-day period set forth in § 31-293(a). Furthermore, the defendants argue that the plaintiff is not entitled to an exemption from the thirty-day intervention requirement of § 31-293(a) because it received adequate notice of the underlying action between Sansone and the defendants.
General Statutes § 31-293(a) provides in relevant part: "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." (Emphasis added.)
It should be noted that the plaintiff argues in its memorandum of law in opposition to the defendants' motion for summary judgment that the defendants' reliance on Worsham v. Greifenberger, supra, 242 Conn. 432, is misdirected because the Worsham case dealt with a date of injury before the 1993 amendment to § 31-293(a), which added the lien rights language on which the plaintiff relies. The Worsham court did in fact recognize the subsequent amendment to § 31-293(a), however, and the court stated that "all references herein to § 31-293 are to the 1997 revision of that statute." Worsham v. Greifenberger, supra, 434 n. 1.
The plaintiff advocates the position that No. 93-228, § 7, of the 1993 Public Acts amended § 31-293(a) allows an employer to bring an independent cause of action against a third-party tortfeasor to recoup workers' compensation benefits that it has paid or will become obligated to pay to its employee pursuant to the workers' compensation lien of the employer). The plaintiff argues that this right exists despite the fact that it did not intervene in the underlying action between Sansone and the defendants within thirty days, which is required by § 31-293(a). Furthermore, the plaintiff argues that the defendants have failed to cite case law with a date of injury that is after the 1993 amendment to § 31-293(a), reasoning that the pre-1993 version of § 31-293(a) did not incorporate the concept of the lien rights into its statutory framework.
General Statutes § 31-293(a) provides in relevant part: "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." (Emphasis added.)
The court finds that there are no genuine issues of material fact in dispute in this case regarding (1) Sansone's underlying personal injury action against the defendants; (2) the plaintiff's valid receipt of notice of the underlying action; and (3) the plaintiff's non-intervening in the underlying action.
In Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163-64, 716 A.2d 71 (1998), the Supreme Court noted two ways in which an employer who has paid or has become obligated to pay workers' compensation benefits to an injured employee pursuant to § 31-293(a) may seek reimbursement from a third party who is responsible for the employee's injuries or damages: "First, the employer may bring an action directly against the tortfeasor. Second, it may join an action commenced by the employee. If either an employer or an employee commences an action against the tortfeasor, that party must notify the other that the action has been filed and must provide the other with the name of the court to which the action is returnable. Upon receipt of proper notice, an employer or employee has thirty days within which to join the action; failure to do so results in the abatement of that party's right of action." "[T]he statute protects an employer by allowing the employer to obtain reimbursement for workers' compensation benefits from a third-party tortfeasor, either by becoming an intervening plaintiff in the employee's cause of action or by bringing a separate action derivative of the employee's cause of action." Nichols v. Lighthouse Restaurant, Inc., supra, 164.
In Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 159, the court addressed "whether a statute of limitations defense may be raised against an employer who, under § 31-293(a), intervenes in an employee's timely filed action against the tortfeasor within the thirty day time period but after the expiration of the applicable statute of limitations." The court concluded that "when an employer receives formal notice under § 31-293(a) of an employee's timely filed action against a third party tortfeasor, the applicable statute of limitations on the underlying claim is tolled if the employer intervenes within the thirty day period prescribed by § 31-293(a)." Nichols v. Lighthouse Restaurant, Inc., supra, 170.
The court in Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 168, addressing the statutory lien created by the 1993 amendment to § 31-293(a), stated that it has "not yet considered whether the statutory lien created by the 1993 amendment . . . applies to unknown future benefits." The Nichols court noted, however, that the parties in that case presented nothing to indicate that the legislature the amendment to be anything more or less than "an additional option available to the employer for obtaining reimbursement from a third party tortfeasor for workers' compensation payments. Accordingly, the fact that an employer now is entitled to a lien on its employee's judgment is not persuasive evidence of the intent of the legislature to effect a change in the operation of the thirty day provision of General Statutes § 31-293(a)." Nichols v. Lighthouse Restaurant, Inc., supra, 169.
The court finds that the 1993 amendment to § 31-293(a) grants an employer a lien on its employee's judgment against the tortfeasor, not an independent cause of action simultaneous to the employee's action. The pertinent language of the 1993 amendment to § 31-293(a) relating to the employer's lien rights provides that the employer "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 . . . shall give written notice of the lien to the party prior to such judgment or settlement." (Emphasis added.) The past tense language of the 1993 amendment to § 31-293(a) grants an employer a lien on any "judgment received" or any "settlement received" by the employee, provided that the employer gives written notice of the lien to the employee prior to the judgment or settlement.
Furthermore, there is nothing in the legislative history of the 1993 amendment to § 31-293(a) that would suggest that the legislature intended to grant to an employer an independent cause of action. The Supreme Court in Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 169, stated that the statutory lien in § 31-293(a) was intended by the legislature to be "an additional option available to the employer for obtaining reimbursement from a third party tortfeasor for workers' compensation payments."
Accordingly, the court finds the 1993 amendment to § 31-293(a) does not grant the plaintiff an independent action to recover past and future workers' compensation benefits and that the plaintiff's right of action against the defendants has abated.
For the foregoing reasons, the Motion for Summary Judgment is granted.
Clarance J. Jones, Judge