Opinion
No. 562732
September 5, 2003
MEMORANDUM OF DECISION RE MOTION TO INTERVENE (#150)
The plaintiff, Benjamin Gregory, brings a five-count complaint sounding in negligence against the defendants Industrial Healthcare Company, Inc., Connecticut Novacare Ventures, Inc., Martin Hasenfeld, M.D., Roger O'Connell, PA-C, William Wainright, M.D., P.C., and William Wainright, M.D., for hand injuries suffered while at work at Phelps Dodge and during subsequent treatment. The plaintiff's employer, Phelps Dodge Copper Products ("Phelps Dodge"), now moves to intervene in the above action. The plaintiff objects on the basis that the employer cannot intervene more than thirty days after being served notice of the suit. The employer maintains that the notice was defective, and, therefore, the employer continues to retain the right to intervene.
Facts
The following facts are necessary to the resolution of this motion. The plaintiff filed his initial complaint on July 9, 2002 and sent letters via certified mail and with return receipt requested, notifying his employer of the suit on August 7, 2002 and August 15, 2002. The August 15, 2002 letter stated in part:
As you are probably aware, we have filed suit on behalf of Benjamin Gregory in the Superior Court for the Judicial District of New London concerning injuries he sustained on 7/3/2000 while at work pursuant to Section 31-293 of Connecticut General Statutes. A copy of that statute is enclosed for your information.
Attached to the August 15, 2002 letter was a copy of the complaint and a copy of General Statutes 31-293. The employer acknowledged receipt of the letters in a September 5, 2002 letter to the plaintiff.
Discussion
"Once statutory notice has been given by the employee to the employer, the employer has thirty days to intervene or `his right of action against such third person shall abate.'. . . General Statutes 31-293 (a)." Johndrow v. State, 24 Conn. App. 719, 720-21, 591 A.2d 815 (1991). "[F]or the abatement provisions of § 31-293 to be invoked against a party, the notice given pursuant to that statute must have comported with both the statutory requirements and the due process clause. In compliance with the statute, the notice must contain (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable . . . and in compliance with the due process clause, the notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." (Citation omitted; internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 444, 698 A.2d 867 (1997).
The plaintiff has failed to meet the full requirements of the second prong because the notice sent to the plaintiff did not include language advising the employer, Phelps Dodge, that "the recipient's right to bring an action . . . will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." Worsham's language is clear. The copy of the statute provided to the employer is not sufficient to satisfy the supreme court's notice requirement. The plaintiff's notice to the employer is defective.
Because the plaintiff's notice was defective, the employer has retained the right to intervene, and, therefore, Phelps Dodge's motion to intervene is wanted.
Conclusion
Phelps Dodge's motion to intervene is granted.
D. Michael Hurley, JTR