Opinion
No. HHD X04 CV-05-4034694 S
August 5, 2008
MEMORANDUM OF DECISION
After consideration, the court issues this memorandum of decision concerning the defendant Roger A. Silva's (Silva) and the defendant Wellington Sales Installation Co., Inc.'s (Wellington) motions for summary judgment. The court heard oral argument on June 3, 2008. For the reasons stated below, the motions are granted.
In his motion, Silva claims that Massachusetts law applies here and bars claims against a fellow employee arising out of injuries incurred in the course of employment. In its motion, Wellington contends that it is entitled to judgment since Massachusetts law applies and workers' compensation is the plaintiff's exclusive remedy. Alternatively, it asserts that, if Connecticut law applies, the motor vehicle exception to workers' compensation exclusivity does not apply to employers.
In opposition to Silva's motion, the plaintiff argues that Connecticut law applies and permits the action against Silva under the motor vehicle exception. Alternatively, if Massachusetts law applies, the plaintiff argues that genuine issues of material fact preclude the entry of summary judgment. As to Wellington's motion, the plaintiff contends summary judgment should be denied since Connecticut law applies and there are genuine issues of material fact as to the employment status of the plaintiff's decedent at the time of the subject motor vehicle accident.
I Background
The original complaint in this matter is dated December 9, 2004. The matter was filed in the Superior Court for the judicial district of New London on December 23, 2004, more than three years ago.
When the motions for summary judgment were filed, the operative complaint in this matter was the fourth amended complaint, dated March 7, 2006 (#166.10) (complaint). The plaintiff filed a request for leave to amend on May 6, 2008, the same date on which objections to the motions were filed. In adjudicating the motions, the court has considered the changed allegations in the plaintiff's fifth amended complaint (proposed amended complaint), which only affect the eleventh, twelfth, and fourteenth counts.
In the fourth, fifth, and sixth counts of the complaint, the plaintiff claims that Wellington and Silva are liable for negligence, recklessness pursuant to General Statutes § 14-295, and common-law recklessness, respectively.
In these counts, the plaintiff alleges that, on October 22, 2003, at approximately 8:30 p.m., Tavis Hodgate (Hodgate) was a passenger in a Ford Van owned by Wellington, which was being operated by Silva, going northbound on Interstate 95, in Stonington, Connecticut. The plaintiff also alleges that, at that time, defendant Amanda A. Ferraro was operating a BMW, also going northbound on Interstate 95, when she suddenly and without warning swerved her vehicle across the travel lanes on the highway and, thereafter, Silva swerved the van, causing it to leave the road and roll over several times. The plaintiff further alleges that Hodgate was ejected from the van, causing him severe injuries which resulted in his death.
The plaintiff alleges that Wellington has a principal place of business in Dighton, Massachusetts. The plaintiff claims that, at all material times, Silva "was an agent, servant and/or employee" of Wellington, "and was acting within the course of his employment operating a motor vehicle on public roads within the State of Connecticut." See complaint, fourth, fifth, and sixth counts, ¶ 4. The plaintiff also alleges that, at all material times, Silva was employed by Wellington as a foreman with supervisory responsibilities and duties. See complaint, fourth, fifth, and sixth counts, ¶ 5.
In the fourth count, paragraph 9, the plaintiff reiterates the allegation that Silva was acting in the course of his employment, and seeks to hold Wellington and Silva liable for negligence. In the fifth count and sixth counts, paragraph 9, the plaintiff again alleges that Silva was acting in the course of his employ with Wellington, and in these counts seeks to hold Wellington and Silva liable for recklessness, pursuant to General Statutes § 14-295 (fifth count) and pursuant to the common law (sixth count).
Section 14-295 provides, "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle."
In the tenth (negligence), thirteenth (recklessness pursuant to § 14-295), and fifteenth counts (common-law recklessness), the plaintiff seeks to hold defendant LJ Associates, Inc. (LJ) liable, based on allegations that, at the time of the accident, Silva was acting as an agent, servant and/or employee of LJ. In paragraph 6 of these counts, the plaintiff alleges that Silva was employed as a foreman with supervisory responsibilities, which included "the proper driving and maintenance of the [Ford van], known to be susceptible to rolling over." In paragraph 7 of these counts, the plaintiff alleges that the Ford van was owned by LJ. The plaintiff alleges that LJ has a principal place of business in Swansea, Massachusetts.
In the operative and proposed amended eleventh, twelfth, and fourteenth counts, respectively, the plaintiff seeks to hold Silva liable for negligence, statutory recklessness, and common-law recklessness. In the complaint, the plaintiff alleges in these counts, as he does in other counts, that Silva was acting in the course of his employment. In these counts of the proposed amended complaint, the plaintiff does not allege that Silva acted in the course of his employment. Even if the amendment were permitted, the proposed omission of such allegations from the proposed counts does not change the analysis of the motions for summary judgment.
II Standard of Review
"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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
"When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006).
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).
Here, no objection was raised to any exhibit. Accordingly, the court deems such objections to have been waived. In the exercise of its discretion, the court has considered the exhibits which were presented.
III Discussion A Silva's Motion I. Choice Of Law
Connecticut and Massachusetts law differ as to whether claims are barred against a fellow employee where the action is based on the fellow employee's negligence in the operation of a motor vehicle. Connecticut General Statutes § 31-293a provides, in relevant part, "[i]f 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 . . . the action is based on the fellow employee's negligence in the operation of a motor vehicle . . ."
In contrast, Massachusetts General Laws Chapter 152, Section 24, concerning claims against employers, which also applies to a claim by an employee who is injured in the course of employment against a fellow employee acting in the course of employment, provides no such exception. See Mendes v. Tin Kee Ng, 400 Mass. 131, 132, 507 N.E.2d 1048 (1987).
The court next considers whether Connecticut law or Massachusetts law applies. To do the court must look to the Restatement Second of Conflict of Laws (Restatement). See Jaiguay v. Vasquez, 287 Conn. 323, 350, 948 A.2d 955 (2008), in which the Supreme Court adopted the "most significant relationship" test of the Restatement (Second) of Conflict of Laws "for purposes of tort actions that, like the present action, involve a claim brought under an exception to the exclusivity provisions of our Workers' Compensation Act." (Footnote omitted.)
In so doing, the Supreme Court discussed Snyder v. Seldin, 81 Conn.App. 718, 841 A.2d 701 (2004), which is addressed in the parties' arguments here. See Jaiguay v. Vasquez, 287 Conn. 340-42. Snyder concluded that New York's law, which contained no exception comparable to General Statutes § 31-293a, was applicable to claims by a New York resident, who was principally employed in New York, against a coemployee, arising from a motor vehicle accident which occurred in Connecticut. Snyder affirmed the trial court's granting of summary judgment. The trial court "stated that '[c]onsidering the factors set forth in such cases as Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), and O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13(1986), as well as 1 Restatement (Second), Conflict of Laws § 145 (1971), referred to therein . . . the employment relationship and the relationship of the parties was centered in the state of New York and . . . the justified expectations of the parties is likewise related to New York law.'" Snyder v. Seldin, supra, 81 Conn.App. 721.
In Jaiguay v. Vasquez, supra, 287 Conn. 342, n. 12., the Supreme Court noted that, in Snyder, the Appellate Court also considered the tests set forth in the Restatement and "concluded that those tests also compelled the conclusion that New York law was the applicable law." See Snyder v. Seldin, 81 Conn.App. 724-25. In Snyder, 81 Conn.App. 722, 724, the Appellate Court stated that it was required to undertake an interests analysis, citing Simaitis v. Flood, 182 Conn. 24, 31-2, 437 A.2d 828 (1980), and to examine the Restatement.
Jaiguay was released on June 17, 2008, after the oral argument here. Jaiguay, at 287 Conn. 348, overruled the Supreme Court's July 24, 2007 decision in Johnson v. Atkinson, 283 Conn. 243, 926 A.2d 656, which held that the same choice of law analysis applies to tort claims and claims for workers' compensation benefits. Thereafter, the plaintiff requested reargument and additional discovery, and submitted two additional reply briefs concerning Jaiguay, which the court has considered.
Here, the parties argued and extensively briefed the choice of law issues, including concerning the applicability of the reasoning of Snyder v. Seldin, supra. Numerous memoranda, including replies and sur-replies, were filed. For example, see plaintiff's objection (#306), pages 13-14. Since the parties have had an extensive opportunity to brief and argue the issues, there is no need for additional argument.
Also, since Johnson v. Atkinson, supra, was decided after the July 1, 2007 scheduling order deadline in this case for the completion of the depositions of fact witnesses, to which the parties had agreed, and long after the Appellate Court's 2004 decision in Snyder v. Seldin, supra, the parties had a full opportunity to conduct discovery in order to discover relevant facts bearing on the choice of law issues. Nothing decided in Jaiguay requires different discovery than was required under the previous appellate decisions. Additional time to conduct discovery is not warranted. See also this court's three previous memoranda of decisions concerning motions for protective orders, dated January 15, 2008, and April 16, 2008 (two decisions issued on that date).
"Subsection (1) of § 145 of the Restatement (Second) of Conflict of Laws provides that '[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.' 1 Restatement (Second), Conflict of Laws § 145(1), p. 414 (1971). Subsection (2) of § 6 of the Restatement (Second) of Conflict of Laws, in turn, provides: 'When there is no [statutory] directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.' Id., § 6(2), p. 10.
For assistance in our evaluation of the policy choices set out in §§ 145(1) and 6(2) [of the Restatement (Second)], we turn . . . to § 145(2) . . . which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases . . . Subsection (2) of § 145 of the Restatement (Second) of Conflict of Laws provides: 'Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. 1 Restatement (Second), supra, § 145(2), p. 414." (Citation omitted; internal quotation marks omitted.) Dugan v. Mobile Testing Services, Inc., 265 Conn. 791, 801-02, 830 A.2d 752 (2003).
In order to apply the most significant relationship test with respect to whether Connecticut's law, with its motor vehicle exception to workers' compensation exclusivity, applies, or whether Massachusetts law applies, the court discusses the specific contacts that each jurisdiction, Connecticut and Massachusetts, has to the facts and circumstances. See Jaiguay v. Vasquez, supra, 287 Conn. 351. No party contends that another state's law should apply.
The undisputed facts in the record show that the accident in which Hodgate was injured occurred on Interstate Route 95 in Stonington, Connecticut. The bulk of the alleged negligence and recklessness which is alleged to have caused the accident occurred in Connecticut. The plaintiff also alleges that pre-accident modifications by Silva to the Ford van also contributed to causing the accident. There is no evidence that those modifications occurred in Connecticut.
In his complaint, the plaintiff alleges that Wellington and LJ are Massachusetts corporations with principal places of business in Massachusetts, located, respectively, in Dighton and Swansea, Massachusetts. Wellington and LJs businesses involve the installation of seating, including movie theater seats, stadium seating, and classroom seating. See Silva affidavit; deposition testimony of Raymond Audet, plaintiff's Exhibit H, p. 22.
When the accident occurred, Hodgate and Silva were returning to Massachusetts from New York City, where they had been working on jobs for Wellington and/or for LJ. See Silva affidavit, ¶¶ 10, 12. No work on this business trip was performed in Connecticut. See Silva affidavit, ¶ 19. The work was assigned in Massachusetts and Hodgate and Silva were hired in and paid from Massachusetts. See Silva affidavit, ¶¶ 22, 24; affidavit of James Murphy, ¶ 7 (Murphy affidavit).
The record establishes that the Hodgate's, Silva's, Wellington's and LJ's employment relationships were centered in Massachusetts. Wellington and LJ were located there and are incorporated there. See Murphy affidavit, ¶ 4. The Ford van, in which Hodgate was a passenger at the time of the accident, and which also carried the work crew's tools, was owned by Wellington, and was registered in Massachusetts. See Silva affidavit, ¶¶ 5, 13. Neither Wellington nor LJ had an office or a business facility in Connecticut. See Silva affidavit, ¶ 20; Murphy affidavit, ¶ 5.
James Murphy is the president of Wellington. See Murphy affidavit, ¶ 3. At his June 9, 2005 deposition, he testified that he, Audet, and Silva were the "lead guys" at both Wellington and LJ. See deposition of James Murphy, p. 58 (Exhibit to Wellington's sur-reply (#322).
Audet testified that he is also an owner of LJ, along with Kara Murphy, Katie Murphy, and Jennifer Murphy. The majority of LJ is owned by women, which is helpful in bidding on public jobs. See deposition testimony of Raymond Audet, plaintiff's Exhibit H, pp. 22-23.
Audet testified that seventy per cent of his work is in the Northeast, which was defined to include Pennsylvania, New York, and New England. If a job is located further than Washington, D.C., they fly to it. See deposition testimony of Raymond Audet, plaintiff's Exhibit H, p. 41. While Wellington and LJ perform work outside of Massachusetts, and New England includes Connecticut, they are based in Massachusetts. In Audet's time at Wellington, the largest job it has done is Gillette Stadium, the New England Patriots' new stadium in Foxborough, Massachusetts. See deposition testimony of Raymond Audet, plaintiff's Exhibit H, p. 41.
Silva, who was driving the Ford van at the time of the accident, was a Massachusetts resident. See Silva affidavit, ¶¶ 6, 21. The plaintiff also alleges a claim against Wellington's insurer, Pilgrim Insurance Company, a corporation licensed to transact insurance business in Massachusetts. See complaint, ninth count.
According to Charles Hodgate, the decedent's administrator, at the time of his death, Hodgate lived in Warren, Rhode Island. See deposition of Charles Hodgate, plaintiff's Exhibit L, p. 11. Charles Hodgate was appointed to administer the decedent's estate in Rhode Island. See plaintiff's Exhibit P.
According to the police accident report, Hodgate lived in Swansea, Massachusetts.
Defendant Ferraro, the driver of the other vehicle involved in the accident, also lived in Rhode Island. Except for the fact that the decedent and Ferraro lived in Rhode Island, there is no other evidence in the record of Rhode Island having an interest here. No party contends that Rhode Island law applies.
The plaintiff alleges that, prior to the accident, Ferraro was drinking at a Noank, Connecticut bar, the Seahorse Cafè, owned and operated by defendant Seahorse, Inc. (Seahorse), a Connecticut corporation, and that its permittee, defendant Robert Sader, was a Connecticut resident at the time of the accident. The plaintiff alleges that Seahorse and Sader were reckless and/or willful in serving alcohol to Ferraro after she was intoxicated. See complaint, seventh and eighth counts.
In a companion case, Hodgate v. Daniel Packer Inne., Ltd., Docket No. CV 05 5015871, the plaintiff also alleges that Ferraro was so served at another bar.
"[I]n view of the fact that the injury and the majority of the conduct causing it occurred in Connecticut, the factors set forth in subdivisions (a) and (b) of § 145(2) [of the Restatement] weigh in favor of the application of Connecticut law." (Footnote omitted.) Jaiguay v. Vasquez, supra, 287 Conn. 352. Because the record establishes that the employment relationships clearly were centered in Massachusetts, where Hodgate's and Silva's employers were headquartered, where they were hired, from where they were paid, and from where their work assignments emanated, where Silva resided, and where Wellington's Ford van was registered, the factors set forth in subdivisions (c) and (d) of § 145(2) weigh in favor of applying Massachusetts law. Massachusetts is not merely the place where Wellington and LJ are incorporated. At the time of the accident, these employers were engaged in operating their businesses from there. See Restatement, comment e to § 145(2), p. 421.
That Ferraro was served alcohol at the Seahorse on the evening of the accident is evidence of a single occasion in which Ferraro was a customer there, not of a continuing relationship. There is no evidence that she was employed there. Her relationship with the Seahorse was transitory in nature. As discussed below, that relationship has no bearing on the issue of whether Connecticut's fellow employee motor vehicle exception to workers' compensation law applies.
"[I]t is the significance, and not the number, of § 145 (2) contacts that determines the outcome of the choice of law inquiry under the Restatement [Second] approach. As the concluding sentence of § 145(2) provides, '[t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.'" (Internal quotation marks omitted; emphasis added.) Dugan v. Mobile Testing Services, Inc., supra, 265 Conn. 803.
Massachusetts has the greater contact with the parties here. The most significant factors are that (1) Wellington and LJ are headquartered in and employed Hodgate and Silva in Massachusetts and, even though their assignments took them out of Massachusetts to various other states, their work was assigned there; (2) the Wellington Ford van was registered in Massachusetts; and (3) both Wellington and LJ are Massachusetts corporations. Also, Silva resided there. See Jaiguay v. Vasquez, supra, 287 Conn. 353.
The sole reason why Silva drove into Connecticut from New York was to reach a destination in Massachusetts. The fact that Interstate 95 runs from New York City, through Connecticut, to Massachusetts, is the only reason why the Ford van was in Connecticut at the time of the accident. No one was performing work in Connecticut. "[I]t was mere happenstance that the accident occurred in Connecticut." Jaiguay v. Vasquez, supra, 287 Conn. 353.
The factors enumerated in § 6(2) of the Restatement also militate in favor of applying Massachusetts law. "In determining which state's law should apply under § 6(2), we must review, inter alia, the respective policies and interests of [Massachusetts] and Connecticut in the controversy. See 1 Restatement (Second), supra, § 6(2)(b), (c) and (e), p. 10." Jaiguay v. Vasquez, supra, 287 Conn. 353. "In general, it is fitting that the state whose interests are most deeply affected should have its local law applied." 1 Restatement (Second), supra, § 6, comment (f), p. 14.
While "Connecticut has a strong interest in deterring drivers from speeding and driving recklessly on its roads and highways . . . its interest in that regard is diminished when the offending conduct occurs during a brief entry into the state and when any accident that occurs as a result of the undue speed or recklessness does not involve a Connecticut resident." Jaiguay v. Vasquez, supra, 287 Conn. 354.
"Moreover, Connecticut's interest in deterring and punishing reckless driving [and driving while intoxicated] is largely satisfied by [Ferraro's] conviction . . . in this state." Id. Also, Connecticut's interest in regulating, deterring, and punishing purveyors of alcohol who violate the law is unaffected by whether Connecticut or Massachusetts law applies to the issue at hand, concerning the fellow employee motor vehicle exception to workers' compensation exclusivity. The court's determination of this issue does not affect the plaintiff's claims against the Seahorse and Sader.
According to her attorney's affidavit, submitted with the plaintiff's February 4, 2008 motion to reargue (#281), Ferraro pleaded nolo contendere to two counts of misconduct with a motor vehicle, in violation of General Statutes § 53a-57 (causing the death of another person by criminal negligence in the operation of a motor vehicle), which is a Class D felony, and pleaded nolo contendere to operating a motor vehicle while under the influence of alcohol, in violation of General Statute § 14-227a.
Connecticut has only a limited interest in vindicating its policy of permitting actions in accordance with the motor vehicle exception of § 31-293a when, as in the present case, Connecticut's ongoing ties are only to those who sold liquor to Ferraro, and not to any other person or party allegedly involved in the accident. "In contrast, because the parties' employment relationship is centered in [Massachusetts, Massachusetts] has a clear interest in ensuring that its contrary public policy is honored." (Footnote omitted.) Jaiguay v. Vasquez, supra, 287 Conn. 354. As is the case here, in Jaiguay, the Supreme Court noted that, there, the decedent would not be entitled to workers' compensation benefits in Connecticut. See General Statutes § 31-275(9)(B)(vi). It stated, "[i]ndeed that fact alone is a strong indication that this state's interest in the matter is insufficient to warrant the application of its laws under a tort choice of law test." Jaiguay v. Vasquez, supra, 287 Conn. 354 n. 24.
"[S]ubdivision (d) of § 6(2) requires us to examine the expectations of the parties as to what law governs their actions. 1 Restatement (Second), supra, § 6(2)(d)." Id., 287 Conn. 354-55. Since Massachusetts was the situs of the employment relationships and because their only nexus to Connecticut was the fact that the accident fortuitously occurred in Connecticut, Hodgate, Silva, Wellington and LJ reasonably would have expected to be able to invoke the rights and protections available to them under the laws of Massachusetts. In addition, as noted above, Silva resided in Massachusetts and Wellington and LJ were based and incorporated there. See Jaiguay v. Vasquez, supra, 287 Conn. 355.
"The most significant of these considerations is the reasonable expectations of the parties." Fox v. Sharlow, 41 Conn.Sup. 391, 396, 579 A.2d 603 (1990) [ 1 Conn. L. Rptr. 244] (motion for summary judgment). There, Pennsylvania law was applied where a motor vehicle accident which occurred in Connecticut involved Pennsylvania-based truck drivers who were regularly engaged in making pickups of glass bottles in Connecticut. See id., 392. "The frequency of his trips and the number of pickups and deliveries in Connecticut neither make this state the primary place of his employment nor do they constitute the kind of substantial business activity in this state that would warrant extending to [the plaintiff] the limited right of action that is afforded to employees who live and work in this state." (Internal quotation marks omitted.) Id., 397. See also Szabo v. Feldicsko, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0098939 (October 7, 1992, Rush, J.) ( 7 CSCR 1217) [ 7 Conn. L. Rptr. 390], cited in Snyder v. Seldin, supra, 81 Conn.App. 721, where, on summary judgment, the court applied the Restatement factors and "conclude[d] that the justified expectations of the parties arise from a New York employment relationship which provides the benefits and burdens encompassed by the Workers' Compensation laws of that state."
The Massachusetts Workers' Compensation Act was "[e]nacted as a humanitarian measure in response to strong public sentiment that the remedies afforded by actions of tort at common law did not provide adequate protection to workers . . ." Walker's Case, 443 Mass. 157, 160-61, 819 N.E.2d 595 (2004). "[A] broad interpretation of the act remains appropriate because the act's exclusivity provision eliminates the employee's common-law remedies against his employer . . . [The] purpose of the workers' compensation act was to ensure that employees, who give up their rights to sue their employers in tort, will recover lost wages and lost earnings capacity and medical expenses resulting from work-related injuries, regardless of fault or forseeability." (Citation omitted; internal quotation marks omitted.) Id., 161.
"The employers of Massachusetts should be able to rely on the workers' compensation system that they pay into and rely on it to provide protection for workers they employ in Massachusetts." Walton v. Duct Vent Cleaning of America, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99 0089850 (November 22, 2000, Arena, J.) ( 29 Conn. L. Rptr. 64) (on summary judgment, after analysis of Restatement factors, Massachusetts law applied concerning fatal accident in Connecticut where driver and decedent passenger in a Massachusetts-registered truck were Massachusetts residents, employed by a Massachusetts corporation, and were in Connecticut performing duties for employer).
"With respect to subdivisions (f) and (g), which, respectively, require [consideration of] the certainty, predictability and uniformity of the result and the ease in the determination and application of the law to be applied, we acknowledge that focusing solely on one relevant factor, such as the place of the injury, would result in simpler, more predictable choice of law decisions . . . [H]owever. these factors should not be overemphasized, since it is obviously of greater importance that choice-of-law rules lead to desirable results . . . Moreover, '[a]lthough the principles of certainty and ease of application must be taken into account, the Restatement [Second] cautions against attaching independent weight to these auxiliary factors, noting that they are ancillary to the goal of providing rational, fair choice of law rules . . . Indeed, we previously have been unwilling to predicate a choice of law determination on the place of the injury alone because the primary benefit of such a test, that is, simplicity, is outweighed by the need for a more nuanced, contextual analysis . . . [T]he guiding principles of the Restatement [Second] command respect precisely because they encourage a searching case-by-case contextual inquiry into the significance of the interests that the law of competing jurisdictions may assert in particular controversies." (Citations omitted; footnote omitted; internal quotation marks omitted.) Jaiguay v. Vasquez, supra, 287 Conn. 355.
"Under subdivision (a) of § 6(2) of the Restatement, the court also must consider the needs of the interstate and international systems." Jaiguay v. Vasquez, supra, 287 Conn. 355, n. 25. As in Jaiguay v. Vasquez, supra, those needs do not appear to be implicated here.
In sum, the considerations relevant to the court's inquiry militate strongly in favor of applying Massachusetts law to the issue. See id.
The result would be the same under the analysis utilized in Snyder v. Seldin, supra, 81 Conn.App. 722-25.
2. Fellow Employee
Silva argues that, at the time of the accident, Wellington and LJ were closely related companies; engaged in the same business, the installation of seating; and that they shared employees, equipment, facilities, and vehicles. He contends that, at the time of the October 22, 2003 accident, he and Hodgate were in the process of completing a business trip which originated on October 20, 2003, during which they together performed work for one or both of the companies, on Long Island, New York, and in New York City, the sole purpose of which was to perform seating installation work, and that the accident occurred on the return route. He asserts that, at the time of the accident, he was acting within the course of his employment with Wellington and/or LJ, and that Hodgate was a passenger in the Wellington van operated by Silva by virtue of Hodgate's employment by Wellington and/or LJ. He asserts that the injury to Hodgate clearly arose out of the nature of and in the course of Hodgate's employment, which required Hodgate to travel to different locations to perform his work tasks and then to return.
Based on these facts, Silva argues that both he and Hodgate were employed by Wellington and by LJ for purposes of the trip, that they were either fellow employees or fellow joint or concurrent employees of both companies at the time of the subject accident, and, accordingly, that Massachusetts workers' compensation law bars this action as to him.
In opposition, the plaintiff argues that there are material issues of fact as to whether Hodgate was employed by any entity at the time of the accident and, if he was so employed, whether he was employed by the same entity that employed Silva at the time of the accident. Also, the plaintiff asserts that there are genuine material issues of fact as to whether joint employment or dual employment exists here. In addition, the plaintiff argues that there is also a genuine issue as to whether Hodgate was acting in the scope and course of his employment for either employer at the time of the accident.
As discussed below, under Massachusetts law, it is the course of employment, not the scope of employment which is relevant here. The plaintiff's reference to Wellington, in a Massachusetts case brought by the estate of Robert Sullivan, another individual who was killed in the accident, having left the plaintiff to its proof as to whether Silva was acting within the scope of his employment with Wellington is immaterial.
In his objection, page 17, the plaintiff argues that the evidence "supports a finding of fact that Hodgate was either acting in the course of employment for LJ or was not acting in the course of employment for any entity at the time of the accident and that Silva was working for Wellington at the time of the subject accident." In addition, the plaintiff states that "[t]he facts in the record indicate that Hodgate, from time to time, provided services to Wellington and, from time to time, provided services to LJ. There is no evidence in the record that, at the time of the accident or in the days leading up to the accident, Hodgate worked simultaneously for both LJ and Wellington. To the contrary, these two companies were careful to delineate Wellington jobs from LJ jobs as evidenced by the . . . wage records provided by Wellington and LJ." See plaintiff's objection, pages 19-20. The plaintiff also states that "although Silva worked, from time to time, for either LJ or Wellington, the evidence in the record, thus far, suggests that Silva was operating the Wellington van, at the time of the accident, as Wellington's agent, servant, or employee." See plaintiff's objection, pages 20-21. As discussed below, under Massachusetts law, Silva is not required to prove that Hodgate and Silva were exclusively employed by Wellington or LJ at the time the accident occurred, or that, in the workday leading up to the accident, they worked simultaneously for Wellington and LJ.
Massachusetts General Laws, Chapter 152, Section 24 provides, in relevant part, that "[a]n employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claims such right . . ." The affidavit of James Murphy, Wellington's president, states that Hodgate did not provide such a notice.
"[W]here compensation benefits are available . . . an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he was also acting in the course of his employment." Saharceski v. Marcure, 373 Mass. 304, 306, 366 N.E.2d 1245 (1977). Rather, he must look solely to his employer's workers' compensation insurer and any independent third-party tortfeasor. See id., 307.
In Massachusetts, an "employee" is defined as "every person in the service of another under any contract of hire, express or implied, oral or written . . ." Massachusetts General Laws (hereafter "G.L.") c.152, § 1(4). Common-law actions against employers and coemployees are barred "where (1) the plaintiff is shown to be an employee; (2) [his] condition is shown to be a personal injury within the meaning of the workers' compensation act; (3) the injury is shown to have arisen out of and in the course of [his] employment." Brown v. Nutter, McClennen Fish, 45 Mass.App.Ct. 212, 215, 696 N.E.2d 953 (1998). The third criterion "is to be broadly construed, so that an injury which arises out of the employment looked at in any of its aspects is subject to the exclusivity provision." (Emphasis added; internal quotation marks omitted.) Id. "The 'course of employment' test used in workers' compensation cases is much broader than the 'scope of employment' test applied to determine whether a master is liable for a servant's negligent acts." Fredette v. Simpson, 440 Mass. 263, 266, 797 N.E.2d 899 (2003) (affirming summary judgment for coemployee).
In the context of claims against coemployees, the Supreme Judicial Court of Massachusetts summarized this broad test as follows: "The relevant inquiry with respect to claims against coemployees is . . . whether, at the time of the injury, the coemployee acted in some way related to his or her employment." (Emphasis added.) Id., 267. See G.L.c. 152, § 15 (barring action against coemployees).
For the purposes of workers' compensation immunity, "the operative time frame is the time of the accident and not some earlier date." Fredette v. Simpson, supra, 440 Mass. 267. Thus, the plaintiff's evidentiary presentation concerning alterations previously made to the van by Silva is not material.
"While an employee may have more than one motive for performing an act, as long as one significant purpose is related to the employment the employee will be considered to be acting in the course of [his] employment . . . With respect to an employee's trip or journey, the test is whether the employment or something else sent the employee on the journey." Mendes v. Tin Kee Ng, supra, 400 Mass. 134-35 (affirming summary judgment for coemployees). "Although each case must be decided on its facts, where it appears that it was the employment which impelled the employee to make the trip, the risk of the trip is a hazard of the employment." Caron's Case, 351 Mass. 406, 409, 410, 221 N.E.2d 871 (1966) (employee killed in motor vehicle accident after business meeting at hotel in evening; that employee had been drinking did not preclude applicability of workers' compensation act).
The material facts are undisputed. Silva's affidavit states that, in October 2003, he worked as a foreman, did the same type of seating installation work for Wellington and LJ., and was paid by both. At that time, the two companies used the same employees, equipment, tools, materials, and techniques for the work. Employees and equipment were transported in vans owned by Wellington. See Silva affidavit, ¶¶ 3, 4, 5, 12. These jobs were handled by crews of Wellington and/or LJ employees. See Silva affidavit, ¶ 8. In James Murphy's deposition testimony, page 58, he stated that the same personnel, himself, Silva, and Audet, were the "lead guys" at both companies.
Silva's affidavit is not inconsistent with his answers to interrogatories. In response to Interrogatory No. 1, he listed his business address at Wellington. In response to Interrogatories Nos. 7 and 8, he stated that he was covered by Wellington's insurance policies. See plaintiff's Exhibit O.
The sole purpose of the trip to New York from October 20, 2003 to October 22, 2003, the date of the accident, was to perform seating installation work for Wellington and/or LJ. See Silva affidavit, ¶ 18. Hodgate worked with Silva as part of Silva's work crew. See Silva affidavit, ¶ 16. Hodgate and Silva worked on seating-related jobs for Wellington and/or LJ in New York. See Silva affidavit, ¶ 12. In the days preceding the accident, Silva and Hodgate worked together on a job in East Islip or Hicksville, New York. See Silva affidavit, ¶¶ 15, 17. On the day of the accident, they worked together on a seating installation job at a Schubert's theater location in New York City. See Silva affidavit, ¶ 14.
The court takes judicial notice that October 20, 2003 was a Monday. Thus, the accident occurred on a Wednesday, October 22, 2003.
When the accident occurred, Hodgate and Silva were returning to Massachusetts from New York City in the Wellington van. Silva was the operator; Hodgate and Robert Sullivan, the other employee who had been working on the same jobs in New York during the trip, and who also was killed in the accident, were passengers. The van contained tools, equipment and materials which had been utilized by Hodgate, Silva, and Sullivan on the seating-related jobs for Wellington and/or LJ. See Silva affidavit, ¶¶ 10-13.
As part of its opposing submission, the plaintiff re-submitted the affidavit of a certified public accountant, Ronald J. Baude (Exhibit M). Originally, his affidavit was provided with the plaintiff's motion to reargue the court's January 15, 2008 memorandum of decision concerning Wellington's motion for protective order (#281). Baude's affidavit refers to wage records provided by Wellington and LJ, attached as Exhibit A thereto. These payroll registers show that, for the week ending October 25, 2003, which is the week during which the trip to New York occurred and during which the accident occurred, both Hodgate and Silva were issued checks by Wellington and by LJ. Plaintiff argues that subsequent letters and statements created by Wellington and LJ concerning Hodgate's and Silva's employment are shams. See Silva's Exhibits C and D. The court does not base its adjudications of the motions on these documents.
In paragraph 4 of his affidavit, Silva states that, in October 2003, he received paychecks from both Wellington and LJ for seating-related work. In paragraph 23, he states, upon information and belief, he also received paychecks from LJ for seating installation work. These statements are consistent with the wage records.
The material facts show that Hodgate and Silva both performed work on the trip, on the same jobs, for Wellington and/or LJ. The plaintiff's sur-reply (#317), page 12, states that "there are two issues of fact extant in the present case, (1) was Hodgate employed by any entity at the time of the accident and (2) if Hodgate was so employed, was he employed by the same entity that employed Silva at the time of the accident." The plaintiff does not dispute that, prior to the accident, Hodgate worked "from time to time" for Wellington and "from time to time" for LJ. The plaintiff asserts that the "evidence in the record establishes that Hodgate was traveling home from a job that had just completed for LJ." See plaintiff's objection (#306), page 28; Rodia v. Tesco Corp., 11 Conn.App. 391, 395, 527 A.2d 721 (1987) (court may rely on statement in plaintiffs' brief).
As discussed below, the happenstance that the last job on which Hodgate and Silva worked, in New York City on October 22, 2003, was for one or the other company, does not negate the fact that, under Massachusetts law, at the time of the accident, they were coemployees of both.
The Appeals Court of Massachusetts law has addressed the concepts of joint employment and dual employment. In Williams v. Westover Finishing Co., 24 Mass.App.Ct. 58, 60-61, 506 N.E.2d 166, review denied, 400 Mass. 1102, 508 N.E.2d 620 (1987), the court stated that "[j]oint employment, where a person under the simultaneous control of two employers simultaneously performs services for both, is a well recognized phenomenon, as distinguished from dual employment, where an employee performs services for each of two employers separately and the services for the two employers are unrelated. See 1 C Larson, Workmen's Compensation §§ 48.41-48.42 (1986). The operations of the two companies were very closely integrated, and the line between them was not clear. In similarly dubious cases other courts have upheld findings that an employee was jointly employed by two employers at once . . . Larson, supra, notes that courts are showing an increasing tendency to recognize joint employment where it exists, instead of arbitrarily assigning the employee to one or the other employer." (Emphasis added; citations omitted.)
Two of the decisions cited by the Appeals Court of Massachusetts in Williams v. Westover Finishing Co., supra, are illustrative. First, in Dillaha Fruit Co. v. Latourette, 262 Ark. 434, 435, 437, 557 S.W.2d 397 (1977), the Supreme Court of Arkansas affirmed the award of benefits against a company where the claimant was injured while driving on a delivery trip which required him to deliver produce from a truck owned by an individual. The claimant was making a delivery run both for the company and for the individual, under the separate invoices of each. In Dillaha, 262 Ark. 437, the court cited 99 C.J.S. Workmen's Compensation 46 (1958), which stated that, "[t]he relation of employer and employee may be simultaneously sustained between several employers and the same employee.
Where this situation exists, the employers have, in several cases, been held jointly liable for compensation to an employee injured . . . while performing a duty for the common benefit of all the employers as . . . where he was returning from points where he had been instructed to go by both employers." Id., 262 Ark. 437.
Prior to being injured, the Dillaha claimant made deliveries to four different stores, two under the individual's invoice and two under the company's invoice. In Dillaha, the court made no distinction as to for which employer the claimant had made his last delivery prior to the motor vehicle accident. The Arkansas Supreme Court affirmed the finding that he was employed by both at the time he suffered injury. See id., 262 Ark. 437.
Second, another decision cited by the Appeals Court of Massachusetts in Williams v. Westover Finishing Co., supra, Richard v. United States Fidelity Guaranty Co., 247 La. 943, 175 So.2d 277 (1965), is instructive as well. There, the plaintiff worked primarily at a cotton gin, which was operated by a family-owned corporation, but also performed various tasks for the family's estate, and later a family partnership, as well as for individual members of the family. The partnership operated farm properties and rental properties. The plaintiff was working as a carpenter's helper on the reconstruction of a house on a lot owned by the estate when he was injured.
The lack of clarity as to for which entity he was working at the time of the accident led to a reversal by the Louisiana Supreme Court, as a matter of law, of the Court of Appeals, and a determination that the plaintiff was entitled to recover workmen's compensation benefits from all three of his employers. The court concluded that he was entitled to recover benefits from: the family partnership, the cotton gin corporation, and/or the estate.
These cases are consistent with the development of the law as discussed in the recent edition of Larson, Workmen's Compensation, an earlier edition of which was cited by the Appeals Court of Massachusetts in Williams v. Westover Finishing Co., supra, 24 Mass.App.Ct. 60. Professor Larson is the leading commentator on workers' compensation law. See Luce v. United Technologies Corp., 247 Conn. 126, 141 n. 20, 717 A.2d 747 (1998). The Massachusetts Supreme Court continues to cite his treatise. See Shaw's Supermarkets, Inc. v. Delgiacco, 410 Mass. 840, 843, 575 N.E.2d 1115 (1991). Thus, reference to his treatise is appropriate here.
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." (Emphasis added; footnote omitted.) 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.
In further discussing dual employment, Larson notes that "[w]hen there is a true dual employment, and the particular industry in which the injury occurs can be clearly identified, it appears logical, under compensation theory, that that industry should bear the compensation cost . . . At the other extreme are dual-employment situations in which it is equally clear that the particular employer whose work was being done at the time of the injury cannot be identified, and that the only possible outcome is liability on the part of both employers. An obvious case is that of the night security guard who works for two or more companies, and is injured while en route between the two buildings. Equally obvious is the case of the salesperson or buyer who is killed in the course of a selling or buying trip for two or more companies." (Emphasis added; citation omitted; footnotes omitted.) Larson, § 68.06, pages 68-7-68-8.
Here, Hodgate's situation is "equally obvious." He was fatally injured when returning from a seating installation trip on which he and Silva did similar work for one or both of the two related companies by which they were both employed.
The facts here also are analogous to those in Gehring v. Nottingham Lace Works, Inc., 82 R.I. 190, 106 A.2d 923 (1954), cited in Larson, § 68.06, page 68-8 n. 5, where the decedent was killed in an airplane accident while on a trip to purchase lace and obtain designs and patterns which his employers could use in the manufacturing of laces in Rhode Island. The employee died from a personal injury arising out of and in the course of his concurrent employment with two respondents. See id., 82 R.I. 195. As in Dillaha Fruit Co. v. Latourette, supra, which also involved a trip taken for two employers, no distinction was made based on for which employer the decedent last conducted business on the trip; compensation was awarded against both.
Massachusetts statutes explicitly recognize concurrent employment. G.L.c. 152, § 1(5), in relevant part, defines "Employer" as "an individual, partnership, association, corporation, or other legal entity, or any two or more of the foregoing engaged in a joint enterprise . . ." Also, G.L.c. 152, § 26B, entitled "Concurrent service of two or more employers; joint and several liability of insurers," provides, in relevant part, "[w]hen an employee in the concurrent service of two or more insured employers receives a personal injury compensable under this chapter while performing a duty which is common to such employers, the liability of their insurers under this chapter shall be joint and several."
As noted above, the plaintiff also argues that material issues of fact exist as to whether Hodgate was acting in the course of his employment, for anyone, at the time of the accident. The plaintiff relies on facts showing that Hodgate and Silva purchased their own dinners in New York City on October 22, 2003, drank beer at dinner, and Hodgate purchased beer on the return trip and drank beer while traveling in the van as a passenger before the accident.
G.L.c. 152, § 26, which provides for the payment of compensation to an employee, by an insurer or self-insurer, addresses this issue. In relevant part, it provides, "[for purposes of this section any person, while operating or using a motor or other vehicle, whether or not belonging to his employer, with his employer's general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer, and whether within or without the commonwealth, . . . and while so performing such work, receives a personal injury, shall conclusively presumed to be an employee." Thus, both Silva and Hodgate are conclusively presumed to be employees covered by the Massachusetts Workers' Compensation Act. As a matter of law, the undisputed material facts show that, for both Hodgate and Silva, the return trip was, under the applicable broad test for assessing whether an injury occurred in the course of employment, " in some way related to [their] employment," (emphasis added). Fredette v. Simpson, supra, 440 Mass. 267, with each employer.
An analogous set of facts to those presented here was discussed in Frassa v. Caulfield, 22 Mass.App.Ct. 105, 491 N.E.2d 657 (Mass.App.Ct.), review denied, 398 Mass. 1101, 495 N.E.2d 310 (1986). There, two employees of a Massachusetts accounting firm conducted an audit at a private school in New Hampshire, where they stayed overnight, but where no evening meal was provided at the school. The employees drove to a restaurant, where they had dinner. "Following dinner, they drove for about half an hour to another establishment where they listened to a band and drank some beer. After about half an hour, the men drove to yet another establishment where they played games of air hockey and spent some time in a lounge. Shortly after midnight, on the trip back to the school and at a point about a ten minute drive from the school, Caulfield failed to negotiate a turn on the road, the car tipped over and Frassa was killed." Id., 22 Mass.App.Ct. 106.
The plaintiff there argued that the subsequent trips to two places for personal entertainment severed the chain which linked the dinner trip to the business of the employer. See id., 107. In determining that the chain was not severed, the court stated, "It is not necessary to determine whether Frassa and Caulfield could be considered to have been acting in the course of their employment at the places they visited after dinner. Frassa was not injured during those activities . . . Nor do we consider the reasonableness or forseeability of the conduct . . . There is nothing in the record which suggests that the behavior of Frassa or Caulfield at the establishments they visited after dinner was unlawful or contributed to the accident on the return rip to the school . . . In these circumstances Frassa and Caulfield were acting in the course of their employment at the time of the accident." (Citations omitted; footnotes omitted.) Id., 22 Mass.App. 111-13.
Here, likewise, there is nothing in the record to suggest that Hodgate's or Silva's purchase or consumption of beer was illegal or contributed to the accident. In addition, under Massachusetts law, the fact that they purchased their own dinner in New York City on October 22, 2003 prior to driving back to Massachusetts did not sever the chain of the connection of the business trip, from Massachusetts to New York and back again, to their employment. See Mendes v. Tin Kee Ng, CT Page 12822 supra, 400 Mass. 134-35; Caron's Case, supra, 351 Mass. 406, 409. They, too, were acting in the course of their employment at the time of the accident.
The plaintiff also argues that, while there is evidence in the record showing that Silva received instructions from James Murphy on October 22, 2003, at about 5:20 on October 22, 2003, after the workday ended, to return to Massachusetts, there is no evidence showing that Hodgate was so instructed. All the evidence shows that Silva was in charge of the crew of which Hodgate was a part. It is immaterial that there is no evidence showing that Murphy also told Hodgate to return. Under Massachusetts law, it is clear that, in taking the return trip in the Ford van, Hodgate was acting in the course of his employment.
Similarly, the fact that Wellington and LJ have filed first reports of injury or fatality concerning Hodgate, Silva, and Robert Sullivan, the other passenger who died in the accident, does not negate the fact that Hodgate and Silva were coemployees at the time of the accident. As explained above, an employee may be employed by two employers in a common undertaking, such as here, where a single trip occurred on which work was done by the same work crew. The fact that Sullivan was paid only by LJ for the work he did on the trip does not negate the fact that Hodgate and Silva were paid by both Wellington and LJ for work done during the same period. Since his employment impelled Hodgate to make the trip, Hodgate's injury on the return trip was "a hazard of the employment." Caron's Case, supra, 351 Mass. 409.
The plaintiff also asserts that Wellington initially denied responsibility for paying workers' compensation benefits as to Hodgate. Plaintiff's Exhibit N shows that this October 28, 2003 denial was based on Wellington's lack of knowledge that Hodgate had dependents; Wellington did not state that Hodgate had not suffered an injury arising out of and in the course of his employment.
Also, the plaintiff's reference to Mosko v. Raytheon Co., 416 Mass. 395, 399, 622 N.E.2d 1066 (1993) is unpersuasive in this context. That case concerned an issue of vicarious liability, in an action brought by a third party, non-employee, about whether an employee's action was within the scope of his employment, not a question involving workers' compensation law, concerning whether an employee was injured in the course of his employment. See id., 400. Similarly, Clickner v. City of Lowell, 422 Mass. 539, 540, 541-42, 663 A.2d 852 (1996), also referenced by the plaintiff, involved a question of whether a police officer was acting within the "scope of his employment" for purposes of the Massachusetts Tort Claims Act, G.L.c. 258, § 2.
Since they dealt with different statutory schemes, also unpersuasive are the plaintiff's references to Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11 L.E.2d 849 (1976) (in request for a representation election, whether respondent was an employer under National Labor Relations Act was a factual issue for the National Labor Relations Board (NLRB), not for review in the United States District Court on an application for an injunction); and Commodore v. Genesis Health Ventures, 63 Mass.App.Ct. 57, 65, 62 n. 7, 824 N.E.2d 453, further review granted, 445 Mass. 1101, 833 N.E.2d 610 (2005) (employment discrimination claims under Massachusetts statutes; court termed nature of joint employer determination to be "fact sensitive," and noted that, "[i]n a different context" it "has applied joint employer analysis," citing Williams v. Westover Finishing Co., Inc., supra, 24 Mass.App.Ct. 58). These decisions do not preclude the entry of summary judgment where the material facts are not in dispute.
Based on the undisputed material facts, the court concludes that Hodgate and Silva were coemployees of Wellington and LJ at the time of the accident. Silva has shown that he and Hodgate were employed by Wellington and by LJ for purposes of the trip, including the return trip on which Hodgate was injured. Hodgate's personal injuries have been shown to have arisen out of and in the course of Silva's and Hodgate's employment with both companies. See Brown v. Nutter, McClennen Fish, supra, 45 Mass.App.Ct. 215. Accordingly, since the plaintiff's claims against him as a coemployee are barred by Massachusetts workers' compensation law, Silva is entitled to summary judgment.
B Wellington's Motion
The same facts apply to Wellington. Under the most significant relationship test, discussed above, the same reasoning is applicable. Massachusetts workers' compensation exclusivity law applies also to a claim against an employer.
In view of this determination, there is no need to discuss the legal issues, which the parties briefed, under Connecticut law.
James Murphy's affidavit, paragraphs 6, 9, states that Hodgate was a Wellington employee and that Hodgate was covered by Wellington's workers' compensation carrier. Hodgate was injured while on a work-related return trip. The material, undisputed facts show that, at the time of the accident, Hodgate (1) was a Wellington employee, (2) that he was suffered personal injuries within the meaning of the workers' compensation act, and (3) that the injuries arose out of and in the course of his employment. See Brown v. Nutter, McClennen Fish, supra. As discussed, the third criterion is to be broadly construed; an injury which arises out of the employment, looked at in any of its aspects, is subject to Massachusetts General Laws, Chapter 152, Section 24's exclusivity provision. See id., 45 Mass.App.Ct. 214-15.
Various arguments made by the plaintiff in response to Wellington's motion are the same as made in response to Silva's motion. These arguments are addressed above in the discussion of Silva's motion. Under Massachusetts law, since Hodgate was a passenger on a work-related return trip from New York, he was injured in the course of his employment for Wellington at the time of the accident.
In addition to the arguments addressed above, the plaintiff's argument that a material issue of fact is created by the presumption stated in General Statutes § 52-183, by providing evidence that Silva was acting in the course of his employment for Wellington, is unavailing. The statute's evidentiary presumption does not establish an exception to workers' compensation exclusivity under Massachusetts law. See Mathiessen v. Vanech, 266 Conn. 822, 837, 840, 836 A.2d 394 (2003). As discussed above, the evidence has shown that he and Hodgate were acting in the course of their employment by Wellington and by LJ for purposes of the trip, including the return trip on which Hodgate was injured.
Section 52-183 provides, "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 defendant shall have the burden of rebutting the presumption."
Also as discussed, the evidence in the record shows that Hodgate did not provide a written notice to Wellington, at the time he was hired, claiming his right of action at common law, pursuant to Massachusetts General Laws, Chapter 152, Section 24. Accordingly, he is deemed to have waived this right of action and the plaintiff's claims against Wellington are barred as a matter of law. Accordingly, Wellington has shown that it is entitled to the entry of summary judgment.
C Amendment
As discussed above, the court has considered the plaintiff's proposed amended complaint, with its changed allegations concerning Silva, and concluded that they do not change the outcome here.
In Miller v. Fishman, 102 Conn.App. 286, 291-92, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008), the Appellate Court addressed whether the trial court appropriately exercised its discretion in declining to act on a request to amend which was filed in a medical malpractice action after a motion for summary judgment was filed. "It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court . . . The court's discretion, however, is not unfettered; it is a legal discretion subject to review . . . The trial court's discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 291-92.
In Miller v. Fishman, supra, 102 Conn.App. 292, "[t]he defendant's motion for summary judgment rested entirely on the plaintiffs' inability to support the theories of liability set forth in their operative complaint. Had the plaintiffs been allowed to amend their complaint to conform to the facts of their claims, which had been revealed in the course of discovery, the basis for summary judgment would have fallen away. In this respect, the present case is distinguishable from other cases in which requests to amend were filed in response to motions for summary judgment. For example, in LaFlamme v. Dallesio, 65 Conn.App. 1, 7, 781 A.2d 482 (2001), rev'd on other grounds, 261 Conn. 247, 802 A.2d 63 (2002), this court held that it was a proper exercise of the trial court's discretion to render summary judgment and thereafter to decline to act on a pending request to amend. In LaFlamme, however, the defendant's motion for summary judgment did not rest on a failure of the operative complaint that could be remedied through a proper amendment."
In Miller v. Fishman, supra, 102 Conn.App. 293, the Appellate Court also stated "we emphasize that we are not ruling that trial courts are required, in every instance, to consider requests to amend filed in response to motions for summary judgment. Our decision is confined by the particular facts and circumstances of this case."
As discussed above, the court has reviewed the plaintiff's changed allegations in his proposed amendment and concluded that the undisputed facts warrant summary judgment, even if the proposed amendment is considered. Here, the proposed amendment would not cause the basis for summary judgment to fall away. See Miller v. Fishman, supra, 102 Conn.App. 292.
Rather, the situation here is similar to that in LaFlamme, where "the defendant's motion for summary judgment did not rest on a failure of the operative complaint that could be remedied through a proper amendment." Miller v. Fishman, supra, 102 Conn.App. 292.
Here, the proposed amendment was offered even later than the "two and one-half years after the incident" in LaFlamme. LaFlamme v. Dallesio, supra, 65 Conn.App. 6. As noted above, the accident at issue here occurred in October 2003, more than four and one-half years before the filing of the proposed amendment in May 2008. As in LaFlamme, the proposed amendment was offered after the motions for summary judgment were filed.
This court has exercised its discretion by hearing and ruling on Silva's motion for summary judgment. "Having granted the motion and rendered judgment, the court no longer [is] compelled to act on the plaintiff's request [to amend]." LaFlamme v. Dallesio, supra, 65 Conn.App. 7.
CONCLUSION
For the foregoing reasons, Silva's and Wellington's motions for summary judgment are granted. It is so ordered.