Opinion
No. CV06 5000476-S
March 16, 2009
MEMORANDUM RE MOTION FOR SUMMARY JUDGMENT #113
The plaintiffs. Linda Kranich and her husband, Edward Kranich (hereinafter, the plaintiffs), commenced a four-count complaint against the defendant, TCAC, LLC (hereinafter, TCAC), on March 15, 2006. The defendant has now filed a motion for summary judgment, attacking all four counts. For the following reasons, the court concludes that the motion must be denied, as there are still genuine issues of material fact left unresolved.
I. Facts
The plaintiffs allege that on or about April 5, 2004, while lawfully on property owned by TCAC and located at 1096 North Colony Road, Wallingford, Connecticut, Linda Kranich fell and was injured because of a defective or dangerous condition on the premises. The injury allegedly occurred while she was "walking upon a plywood walkway which was above a suspended ceiling," from which "she suddenly and without warning was caused to fall through the suspended ceiling, striking an object on the floor below, thus causing severe and substantial injuries and losses . . ." The plaintiffs allege that all of this was caused, in one way or another, by TCAC's negligence and carelessness, in that one or more dangerous conditions were permitted to subsist on the property even though TCAC knew or should have known about those dangerous conditions. Counts three and four of the plaintiffs' complaint apply only to Edward Kranich and seek recovery for loss of consortium.
Essentially, the plaintiffs allege that the elevated plywood walkway Linda Kranich fell from did not have railing, was inadequately illuminated, and did not have any other safety guards to prevent this type of accident. Additionally, it is alleged that Linda Kranich should not have been allowed to walk upon the plywood walkway in the first place, and that she was not warned of the dangers it presented.
By way of additional evidence filed by the parties in support of or in opposition to TCAC's pending motion for summary judgment, the following facts can also be found. At the time of the fall, Linda Kranich was employed by the Connecticut Athletic Club d/b/a Healthworks (hereinafter, Healthworks). Healthworks operated a health club on the property. This property was leased to Healthworks by TCAC, the entity that legally owned it. Both entities were Connecticut limited liability companies and both were formed on the same day, May 23, 2000, by Robert Stern, Allen Jackson, and Sailesh Atlurn. These three men were the sole members of both TCAC and Healthworks. Neither limited liability company exists today, both having been dissolved on the same day in 2006.
TCAC's motion for summary judgment was filed on May 29, 2008 and is accompanied by a memorandum of law. Attached to this memorandum are the affidavits of two of its members, Robert Stern and Allen Jackson (TCAC has withdrawn the affidavit of Stern because he had not been available for a deposition); business inquiry records for TCAC, LLC and The Connecticut Athletic Club, LLC; an insurance contract naming both "TCAC, LLC" and "The Connecticut Athletic Club, LLC DBA Health Work" as insureds; and a copy of a document from the Connecticut Workers' Compensation Commission entitled "Employer's First Report of Occupational Injury or Illness," which lists Linda Kranich's employer as "TCAC, LLC The CT Athletic." The plaintiffs filed an objection and a memorandum of law in support of this objection on September 30, 2008, which are accompanied by the deposition of Allen Jackson and a copy of a "Voluntary Agreement" form issued by the Connecticut Workers' Compensation Commission reflecting workers' compensation benefits to be paid to Linda Kranich. The Voluntary Agreement lists "Healthworks" as employer. Finally, on November 4, 2008, TCAC filed a reply to the plaintiffs' objection, largely reiterating the arguments made in its May 29, 2008 memorandum of law.
Healthworks has since been permitted to file its own complaint against the plaintiffs as an intervening plaintiff. It did so and now seeks reimbursement for amounts it paid to Linda Kranich in workers' compensation benefits, should the plaintiffs recover from TCAC.
It is also undisputed that Linda Kranich's injuries arose out of and were sustained in the course of her employment with Healthworks. Because of this, she sought and recovered workers' compensation benefits from Healthworks. It is on the basis of this workers' compensation recovery that TCAC now moves for summary judgment.
TCAC argues that the exclusivity provision of the Connecticut Workers' Compensation Act, codified in General Statutes § 31-284(a), precludes the plaintiffs from making any further recovery from it pursuant to a negligence theory. It argues that, at the time of her fall and injury, Linda Kranich was employed by a common entity that consisted of Healthworks and TCAC, because of common ownership of the two companies and the manner in which they operated.
General Statutes § 31-284(a) provides: "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 or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
The plaintiffs, on the other hand, argue that Linda Kranich had only one employer: Healthworks; that Healthworks and TCAC were separate entities, and therefore the workers' compensation benefits recovered from Healthworks does not bar an action against TCAC.
Healthworks has also filed an "Intervening Plaintiff's Objection To Defendant's Motion for Summary Judgment," but merely adopts the arguments made by the plaintiffs in their memorandum in opposition.
In sum, the issue before the court is whether TCAC was also Linda Kranich's "employer," as that term is used in the Workers' Compensation Act.
Additional facts will be introduced as necessary.
II. 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. In 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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). "[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).
"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 . . ." (Citations omitted; internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). Summary judgment must be granted where the claim is barred as a matter of law. Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996) (citing the rule in terms of claims barred by statute of limitations). For that matter, it has been held that "[i]n a proper case a defendant can move for summary judgment on the ground that the Workers' Compensation Act is the exclusive remedy for an employee injured in the course of employment. Nolan v. Borkowski, [ supra,] 206 Conn, 500." Steinberg v. Stop Shop Companies, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 91 219136 (April 26, 1993, Fuller, J.) (9 Conn. L. Rptr. 406, 407).
A. Workers' Compensation Exclusivity
"The purpose of the [Workers' Compensation Act] . . . General Statutes § 31-275 et seq.; is to provide compensation for injuries arising out of and in the course of employment, regardless of fault . . . Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount . . . In return, the employee is compensated for his or her losses without having to prove liability . . ." (Citations omitted; internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 378-79, 731 A.2d 294 (1999).
The Supreme Court has held that the exclusive nature of the Workers' Compensation Act operates "as a total bar to common law actions brought by employees against employers for job related injuries, with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994). "[O]nly those defendants who satisfy the requisite jurisdictional standard of an employer as set forth in [General Statutes] § 31-275(10) may successfully assert the exclusivity of the act as a bar to a common-law action by an alleged employee." Doe v. Yale University, 252 Conn. 641, 680, 748 A.2d 834 (2000). In relevant part, § 31-275(10) defines the term "employer" as follows: "`Employer' means any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay . . ."
Thus, in the present case, if, under the statutory definition, TCAC was Linda Kranich's employer, the plaintiffs are precluded from proceeding with this lawsuit, since the workers' compensation benefits she collected would serve as her exclusive remedy. Conversely, if TCAC was not her employer, the plaintiffs may proceed with this action.
In its memorandum of law in support of its motion for summary judgment, TCAC states that "[t]he Connecticut Supreme and Appellate Courts have not specifically addressed the issue of whether an injured employee's negligence action against a limited liability company [that] owned the property where the employee was injured is barred [where] the limited liability company and the plaintiff's employer shared the same members." This court agrees that the issue here appears to be one of first impression. After a review of the applicable case law, this court has identified two closely related lines of cases that offer guidance: One deals with what has become known as the dual capacity doctrine, and the other deals with an analysis of cases where a relationship is involved parent/subsidiary relationship. Each will be examined in turn.
B. The Dual Capacity Doctrine
TCAC argues that the plaintiffs in the present case are excluded from bringing this action because Connecticut does not recognize the dual capacity doctrine. TCAC relies on two Connecticut Superior Court cases, Milton v. Fulmer, Superior Court, judicial district of New Haven, Docket No. CV 02 0467452 (May 9, 2005, Devlin, J.) (39 Conn. L. Rptr. 299) and Sullivan v. Conniff, Superior Court, judicial district of New Haven, Docket No. CV 02 0463372 (August 17, 2004, Arnold, J.) (37 Conn. L. Rptr. 704). The court also notes that a third and more recent case, Roy v. Bachmann, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002032 (October 27, 2008, Roche, J.) (46 Conn. L. Rptr. 575), dealt with a fact pattern similar to those presented in Milton and Sullivan, and used the same reasoning to reach a like result.
These three cases all essentially examined a scenario in which an employee collected workers' compensation benefits from its closely-held corporate employer, then proceeded to bring a premises liability action against the individual landowner that leased the property to the corporate employer. In these cases, the individual landowner also happened to be the owner, sole stockholder, and officer of the corporate employer. In each instance, the court held that the employee's recovery of workers' compensation benefits precluded the employee from pursuing a tort action against the individual landowner. In reaching this conclusion, the courts referred to and rejected the so-called dual persona or dual capacity doctrine, which has been recognized in a few jurisdictions and holds that "[a]n employer may become a third person, vulnerable to tort suit by an employee, if — and only if — it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal entity." Roy v. Bachmann, supra, 46 Conn. L. Rptr. 576. These courts noted that in cases like Panaro v. Electrolux Corp., 208 Conn. 589, 545 A.2d 1086 (1988), "[t]he Connecticut Supreme Court . . . rejected the dual capacity doctrine as an exception to the Workers' Compensation Act where a fellow employee of the plaintiff was alleged to have dual capacity as an independent contractor"; Roy v. Bachmann, supra, 46 Conn. L. Rptr. 576; and therefore, by analogy, determined that dual capacity should be rejected where an employee collects workers' compensation benefits and then attempts to sue his or her employer in their individual capacity as landowner. See also Santiago v. Crowley Chrysler, Superior Court, judicial district of New Britain, Docket No. CV03 0521538 (February 2, 2004, Cohn, J.) ("The `dual persona' doctrine is not accepted in Connecticut").
In Roy, the employer/corporation that paid workers' compensation benefits to the employee was owned by a husband and wife, both of whom also owned, in their individual capacities, the premises upon which the employee suffered her injury. Roy v. Bachmann, supra, 46 Conn. L. Rptr. 575.
The dual capacity doctrine has been rejected "with virtual unanimity." 6 A. Larson L. Larson, Larson's Workers' Compensation Law, (2007) § 113.02, p. 113-12. "Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is [another] obvious practical reason requiring this result. An employer, as part of its business, will almost always own or occupy premises, and maintain them as an integral part of conducting its business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to nothingness." Id.
The plaintiffs argue that the facts here do not fit in the dual capacity doctrine because TCAC was not Linda Kranich's employer at the time of her accident. They note that during his deposition, Jackson, a member of both TCAC and Healthworks, testified that Linda Kranich was an employee of Healthworks, that TCAC did not have any employees and that it never paid payroll tax, all facts that TCAC readily admits. The plaintiffs also point out that Connecticut business records submitted to the court by TCAC in support of its motion for summary judgment actually demonstrate that TCAC and Healthworks were separate entities, each assigned its own business identification number. Their argument is that exclusivity, via the dual capacity doctrine, does not apply to bar their action against TCAC.
The court agrees that the factual scenario in this case differs from those in the aforementioned dual-capacity line of cases. What TCAC is asking, essentially, is for this court to extend the doctrine even further and hold that where the landowner is a limited liability company that, although formed as a separate entity, shares the same membership as the employer/limited liability company, it too should be protected by the exclusivity provisions of the Workers' Compensation Act.
This court declines to adopt the extension proffered by TCAC. The reasoning of the dual capacity doctrine does not hold true when, there is, in fact, a second legal entity involved in the matter, acting as landowner. The general and longstanding rule in Connecticut — often recited when a litigant seeks to pierce the veil of one corporate entity in order to reach another — is to recognize "the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions," and to only disregard this recognized independence where "the interests of justice and righteous dealing so demand." (Internal quotation marks omitted.) Zaist v. Olson, 154 Conn. 563, 573-74, 227 A.2d 552 (1967). At bottom, TCAC is asking the court to pierce its own corporate veil so as to shield it against the plaintiffs — a veil it has willingly donned and now wants to lay aside. The court finds no reason under the facts presented here to extend the dual capacity doctrine where TCAC made a conscious and deliberate choice to be a separate legal entity. Moreover, as discussed infra, issues of material fact regarding TCAC and Healthworks still remain in the case. Accordingly, the defendant is not entitled to summary judgment.
See Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 662 (6th Cir.), cert. denied, 444 U.S. 836, 62 L.Ed.2d 47, 100 S.Ct. 71 (1979), where the court stated "a business enterprise has a range of choice in controlling its own corporate structure. But reciprocal obligations arise as a result of the choice it makes. The owners may take advantage of the benefits of dividing the business into separate corporate parts, but principles of reciprocity require that courts also recognize the separate identities of the enterprises when sued by an injured employee." See also Gregory v. Garrett Corp., 578 F.Sup. 871, 886-87 n. 18 (S.D.N.Y. 1983).
C. The Parent/Subsidiary Relationship Workers' Compensation
There is another line of Connecticut workers' compensation cases that have dealt with exclusivity that the court also finds to be analogous to the facts presented here. These cases deal with a situation in which an employee is injured in the course of his or her employment with a corporate employer that also happens to be a subsidiary or parent company of another corporate entity. In this scenario, the employee collects workers' compensation benefits from the employer, then initiates a tort action against the parent or subsidiary corporation. See Amburn v. Kindred Healthcare Operating, Inc., Superior Court, judicial district of New London, Docket No. 4002335 (December 13, 2006, Gordon, J.) (42 Conn. L. Rptr. 469); Santiago v. Crowley Chrysler, supra, Superior Court, Docket No. CV 03 0521538; Averitt v. Oakdale Development Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 02 0459460 (May 21, 2003, Arnold, J.); Beardslee v. Automated Waste Disposal, Superior Court, judicial district of Danbury, Docket No. CV 96 0324450 (November 4, 1999, Radcliffe, J.) (25 Conn. L. Rptr. 603); Dapice v. Eastern Elevator Co., Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0105979 (September 16, 1993, Dean, J.) (10 Conn. L. Rptr. 181); Steinberg v. Stop Shop Companies, Inc., supra, 9 Conn. L. Rptr. 406.
The apparent genesis of this line is Gregory v. Garrett Corp., 578 F.Sup. 871 (S.D.N.Y. 1983). Gregory required the District Court to construe Connecticut law in dealing with a wrongful death action brought by the relatives of several employees who died in a plane crash during the course of their employment. Id., 874-76. Prior to initiating the lawsuit, the plaintiffs collected workers' compensation benefits from their deceased relatives' employer, TexasGulf, Inc. (hereinafter, "the parent corporation"). Id., 876. This company happened to be the parent corporation and 100 percent shareholder of TexasGulf Aviation, Inc. (hereinafter, "the subsidiary corporations'), the company that owned and operated the airplane involved in the crash. Id., 875. The subsidiary corporation filed a motion for summary judgment with the District Court. Id., 877. It argued that, under Connecticut workers' compensation law, it was one-and-the-same with the parent corporation, was therefore the "employer" of the deceased employees, and was thus protected by exclusivity as well. Id. Gregory acknowledged that, under Connecticut law, the subsidiary corporation's "claim that it was merely the alter ego of [the parent corporation was] an extremely difficult one to prove." Id., 886. Gregory, citing Doe v. Saracyn Corp., 138 Conn. 69, 82 A.2d 811 (1951) and Wheeler v. New York, New Haven Hartford Railroad Co., 112 Conn. 510, 153 A. 159 (1931), noted that "[w]hether one looks at this contention as an effort to pierce the corporate veil or as an argument that the parent and subsidiary were actually so intertwined as to be a single entity, it represents a legal theory that has not met with a warm reception in the courts of most states, including those of Connecticut . . . The reluctance with which the alter ego theory is greeted stems from a rather straightforward principle of fairness: that one who has gained the advantages of separate incorporation must also be willing to accept the consequences of such incorporation. Hence, the courts have developed the general rule that separate artificial corporate personalities are usually disregarded only when the corporate device is used to defraud creditors, create a monopoly, circumvent a statute or for other similar reasons." (Citations omitted; internal quotation marks omitted.) Id., 886-87.
The District Court noted that these types of rationales for piercing the corporate veil or treating one corporation as the alter ego of another generally do not arise in the workers' compensation context, and that, therefore, most courts reason that "absent exceptional circumstances a parent and subsidiary will be treated as distinct legal entities when sued by the employee or his survivors, even if the parent owns all of the stock of the subsidiary, has the right to control it, and has the same directors as does the subsidiary." Id., 887 (emphasis added).
Nevertheless, Gregory concluded that in Connecticut, when a parent or subsidiary corporation's counterpart has already paid an injured employee workers' compensation benefits, that parent or subsidiary may, in exceptional circumstances, rely on an alter ego theory to shield itself from tort liability pursuant to an exclusivity defense. Id., 888 n. 19. To do so, however, the District Court determined that the corporate defendant "must prove a complete merger of [the parent's and subsidiary's] corporate structures, accounting and tax procedures, operational control, and business purposes." Id., 888. It then concluded that too many factual questions regarding these issues remained in contention, and therefore denied the subsidiary corporation's motion for summary judgment. Id.
As outlined above, since Gregory was decided several Connecticut Superior Court opinions have relied on the decision when determining whether a parent or subsidiary corporation may enjoy the exclusivity protection afforded its corporate counterpart. See, e.g., Beardslee v. Automated Waste Disposal, supra, 25 Conn. L. Rptr. 605 (citing Gregory for the proposition that "absent exceptional circumstances, a parent corporation and a subsidiary will be treated as distinct legal entities when sued as an employee"); Dapice v. Eastern Elevator Co., Inc., supra, 10 Conn. L. Rptr. 182-83 (discussing Gregory and denying parent corporation's motion for summary judgment premised on exclusivity because issues of material fact regarding degree of control exerted by parent over subsidiary/employer remained unresolved). Other decisions, without referencing Gregory, have recognized the possibility that, under the right circumstances, a subsidiary or parent corporation may be able to demonstrate that it is so intertwined with the affairs of its corporate counterpart as to become the plaintiff/employee's "employer" for purposes of asserting an exclusivity defense. See, e.g., Averitt v. Oakdale Development Ltd. Partnership, supra, Superior Court, Docket No. CV 02 0459460 (denying corporate defendants' motion for summary judgment where defendants were parent and co-subsidiary of employer because "matrix of business relationships" and insufficiency of documentary evidence made it unclear as to who was employee's actual employer).
Still, it appears no Connecticut courts have examined the exact issue presented in this case; namely, whether, in the absence of a parent/subsidiary relationship, a limited liability company with identical membership to a second limited liability company may assert — either through a veil piercing or alter ego theory — that the two entities are one-and-the-same and therefore a single "employer" protected by the exclusivity provision of the Connecticut Workers' Compensation Act. Absent clear Appellate or Supreme Court authority, the court finds the reasoning of the District Court in Gregory persuasive and analogous, and holds that such a merger of corporate identity will only be recognized in "exceptional circumstances." Gregory v. Garrett Corp., supra, 578 F.Sup. 887.
In his deposition testimony, member Jackson stated that neither company owned any part of the other.
Accordingly, in order to demonstrate such exceptional circumstances, TCAC, as movant and the party seeking to utilize the defense, "must prove a complete merger of [TCAC's] and [Healthworks'] corporate structures, accounting and tax procedures, operational control, and business purposes." Id., 888 (relying upon Doe v. Saracyn Corp., supra, 138 Conn. 69 and Wheeler v. New York, New Haven Hartford Railroad Co., supra, 112 Conn. 510). As can be seen, this is a profoundly fact driven analysis, and the court is mindful that "[p]robably the most significant factor [to be considered] is actual control . . ." 6 A. Larson L. Larson, supra, § 112.01, p. 112-3.
TCAC has presented evidence that both TCAC and Healthworks were comprised of the same three members and that both companies were covered by the same insurance policy. However, "common ownership, identity of management, and the presence of a common insurer are not enough to create identity between parent and subsidiary for compensation purposes"; Dapice v. Eastern Elevator Co., Inc., supra, 10 Conn. L. Rptr. 181 (quoting 6 A. Larson L. Larson, supra, § 112.01, p. 112-3); and the same rule applies in the present context.
While there is evidence presented that bolsters TCAC's argument that TCAC and Healthworks were one entity, other evidence indicates that this issue is unresolved. In support of TCAC's position, Jackson's affidavit states that as a member of both TCAC and Healthworks, he was authorized to supervise and direct Healthworks' employees, to respond to Healthworks' client complaints, manage the finances of both companies, and make staffing decisions for Healthworks. Furthermore, the affidavit and Jackson's deposition testimony reveal that TCAC and Healthworks maintained one office jointly, which was located at the 1096 North Colony Road property that was owned by TCAC and operated as a health club by Healthworks, and that both limited liability companies used the same accounting firm. Also, meetings were held by the members where the finances of both companies were discussed. Finally, during his deposition, Jackson stated that files and records for both companies were maintained together at the joint office, and that the two companies used one checking account, in the name of Healthworks, from which obligations were met and deposits were made.
On the other hand, there is evidence to support the plaintiff's position. In his deposition, Jackson made statements that could be interpreted to suggest that the two companies had different business purposes. When asked if the purpose of TCAC was solely to hold real estate, Jackson answered in the affirmative. Regarding the purpose of Healthworks, the following exchange took place:
"Q. [Plaintiff's Attorney] Now, the other business, Healthworks, what was the reason for beginning that business?
"A. [Jackson] It was an existing health club that had a swimming, tennis, racquetball, basketball, weights, cardio equipment and aerobics." Plaintiffs' Exhibit 1.
Additionally, Jackson stated that the two companies filed separate tax returns.
Other evidence is simply confusing and often contradictory. For instance, despite TCAC's contention that Linda Kranich was its employee, Jackson expressly stated on several occasions in his deposition testimony that TCAC had no employees, and that Linda Kranich in particular was not an employee of TCAC. Jackson also stated that neither company had officers, a president, a vice president or a secretary, just members. His testimony often vacillated when he was asked whether he had separate duties and abilities as a member of both TCAC and Healthworks. At times, for instance, he stated that when he made staffing decisions, he did so only in his capacity as member of Healthworks, and that he was not authorized to make Healthwork's staffing decisions as a member of TCAC. At other times, he stated that he did have authority to make staffing decisions for Healthworks as a member of both TCAC and Healthworks, and that the members treated and saw the two companies as one-and-the-same.
This court is of the opinion that genuine issues of material fact remain to be resolved in this case and that TCAC is not entitled to judgment as a matter of law.
III. Conclusion
Regardless of whether the court employs the dual capacity doctrine or the parent/subsidiary relationship analysis, TCAC has not met its burden of demonstrating that, as a matter of law, it and Healthworks should be treated as a single entity and consequently entitled to judgment on the basis of the exclusivity defense. Accordingly, TCAC's motion for summary judgment is denied.