Opinion
No. CV01-0076465S
January 10, 2003
MEMORANDUM OF DECISION UPON MOTION TO INTERVENE
This case involves an injured workman's arguably belated motion to intervene into litigation commenced by the worker's employer compensation carrier against the maker of an allegedly defective product said to have injured the worker.
On November 12, 2001, the plaintiff-employer, Light Sources, Inc., filed a subrogation action pursuant to General Statutes § 31-293 against the defendant, Global Equipment Corporation, in an effort to recoup monies it had paid out to its employee, Jorge Riviera, in the form of workers' compensation benefits. The Plaintiff-employer alleges that on November 25, 1998, Rivera suffered a serious work-related injury at the plaintiff's manufacturing plant when the adjustable stool on which he sat collapsed unexpectedly, being defective in design.
On March 7, 2002, Rivera filed a motion to intervene and his intervening complaint. Rivera asks the court to use its discretionary power to allow intervention on the grounds that he is a "necessary party," as defined by General Statutes § 52-102. Defendant Global objects, arguing that Rivera had a statutory right to file his own direct product liability suit within three years of his injury, failed to do so, and is now barred by the three year statute of limitations. (General Statues § 52-577a.) Manufacturer Global also asserts that Rivera is precluded because he failed to file his intervening motion within the thirty-day statutory time period authorized by § 31-293, despite his having received what Global contends was proper notice from the plaintiff-employer that it had filed a subrogation action against Global.
General Statutes § 52-102 states in relevant part: "Upon motion by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be. (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy."
General Statues § 52-577a states in relevant part: "(a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered, or in the exercise of reasonable care should have been discovered . . .
General Statutes 31-293 states in relevant part: "(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter. but the payment or award of compensation shall not effect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer having paid or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, or the employer . . . brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and f the others fail to join as parties plaint if their right of action against such person shall abate. . . ." (Emphasis added.)
In a supplemental brief, Rivera appears to abandon his "necessary party" claim under § 52-102, asserting that he is entitled to intervene as a matter of right because the employer failed to comply with the notice requirements of § 31 293. Global suggests that even if the court determines that the notice Rivera received was defective, Rivera's right to file a product claim is still barred by the three-year statute. Lastly, the defendant argues that it will be unduly prejudiced if the court allows Rivera to intervene because it will be exposed to a damage award for pain and suffering.
The defendant argues that through no fault of its own, but instead, as a result of the plaintiff's failure to comply with the notice requirement under § 31-293, he will be unduly prejudiced because this "bad act" on the part of the plaintiff, opens the door for Rivera to sue the defendant. Technically. this is true; however, a plain reading of § 31-293 indicates that such a result does not undermine the "four overlapping principles" behind the statute itself: "First. the statute protects an injured employee by allowing the employee to sue a third party tortfeasor in a private cause of action for damages, such as pain and suffering, that are uncompensated by a workers' compensation award. . . . Second. the statute protects an employer by allowing the employer to obtain reimbursement for workers' compensation benefits from a third party tortfeasor. either by becoming an intervening plaintiff in the employee's cause of action or by bringing a separate action derivative the the employee's cause of action. . . . Third, the employer's statutory right to subrogation of the proceeds of the employee's claim against the tortfeasor implements the public policy of preventing double recovery by an injured employee. . . . Fourth, the employer's statutory right to reimbursement reinforces the public policy that, between the employer and the employee, workers compensation provides the exclusive remedy for personal injury to the employee (Citations omitted.) Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 164, 716 A.2d 71 (1998), of course, the "plain reading" this court alludes to in this language appears to address situations wherein the injured worker first initiates the action against the third party, the reverse of the case here; however, it is felt that the principles to be served remain unchanged.
As to the sufficiency of the notice given by the employer, Rivera citesWorsham v. Greifenberger, 242 Conn. 432, 698 A.2d 867 (1997) to show that the notice was incomplete. Pursuant to Worsham, employers and employees filing third party actions pursuant to § 31-293 have an affirmative duty, in the language of the statute, to "immediately" notify each other of these actions, so that the other party may intervene if they so choose. Id. 437. The Worsham court states that the notice requirement has three prongs, two that arise from the statute itself and one from the constitutional requirements of due process; notice under § 31-293 is deemed invalid if a party fails to comply with all three prongs. Id., 444-45. In compliance with the statute, the notice must contain (1) the fact that the action has been brought; and (2) the name of the court to which the writ in action is returnable . . . and in compliance with the due process clause, the notice must also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." (Citation omitted; emphasis added; internal quotation marks omitted.) Id. Rivera contends the employer failed to comply with the third prong.
Accordingly, we must review the "notice". Global contends that the notice sent Rivera satisfied requirements because: 1) the employer mailed a photocopy of the original summons and complaint to Rivera's attorney, and 2) the employer's attorney sent a letter to Rivera dated April 17, 2001, indicating that it intended to file suit against the defendant.
At oral argument on this motion, Rivera's attorney admitted that he received a copy of the summons and complaint from the plaintiff "at some point;" however, he stated that these documents were sent to him without a cover letter. But the court's file contains a copy of the letter at issue. It is dated April 17, 2001, addressed directly to Riviera, and is signed by the plaintiff's attorney, James D. Moran. Moran states: "Enclosed please find a copy of the opinion of Dr. Irving Ojalvo regarding the potential for a products liability cause of action. Your review of the same will reveal chat Dr. Ojalvo is of the opinion that the chair upon which you were injured was defective. As such, it is my intention to file a products suit at some point prior to November 25, 2001. In this regard you may wish to discuss your options with your attorney." (Emphasis added.)
The plaintiff, in mailing the complaint to Rivera's attorney, complied with the two statutory requirements of notice, i.e., notice of (1) "the fact that an action [had] been brought" and (2) "the name of the court to which the writ in action is returnable." (Internal quotation marks omitted.) Worsham, supra, 242 Conn. 444. But, it is clear that neither complaint, nor the letter, complied with the due process requirement of informing Rivera that he had a right to intervene which he would lose if he did not move to intervene within thirty days. Thus, the plaintiff's notice to Rivera was invalid under § 31-293, and the worker's failure to meet the 30-day deadline for intervening cannot be held against him.
As to the defendant's alternate argument, invoking the three-year limitation, Rivera was injured on November 25, 1998. Thus, per § 52-577a, Rivera had a right to file a direct action before November 25, 2001. In Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 159, CT Page 282 716 A.2d 71 (1998), the Supreme Court addressed "whether the statute of limitations defense could be raised against an employer who, under § 31-293 (a), intervenes in an employee's timely filed action against the tortfeasor within the thirty day time period but after the expiration of the applicable statute of limitations." The court concluded that "when an employer receives formal notice under § 31-293 (a) of an employee's timely filed action against a third party tortfeasor, the applicable statute of limitations on the underlying claim is tolled if the employer intervenes within the thirty day period prescribed by § 31-293 (a)" Id., 170.
The fact that in Nichols, the court addressed this issue in the context of a an employer's motion to intervene, while, here, the issue is raised in the context of an employee's motion to intervene is a distinction without difference. As the court noted in Worsham v. Greifenberger, supra, 242 Conn. 442-43, "[e]mployers and employees have generally been treated identically under the notice and abatement provisions of § 31-293. . . . We see no persuasive reason why they should not be treated identically for purposes of the constitutionality of the notice under [§ 31-293]." (Citation omitted; internal quotation marks omitted.) Id., 442-43.
The setting of this matter is one where our Supreme Court, in Worsham, perceives constitutional due process implications in the sufficiency of the advisement to the worker, and rules that the remedy for violation is to relax the deadline for action dictated by the notice statute. In Worsham, the deadline pierced was not the overall three-year limitation, but the 30-day post notice one.
Worsham also makes clear that no distinctions are to be made based on whether the notice-receiving party is the employer or employee.Worsham, 242 Conn. at 442-43.
Here, in Rivera, the court must determine whether a Worsham -type notice defect should also prompt a puncture of the three-year limitation.
We learn from Nichols, supra, that the three-year limitation is not puncture proof, either. In that case, it gave way against a backdrop ofadequate notice which, as events had it, left less than the 30 days for the intervention action allowed.
It is this court's conclusion that, if our appellate court (s) would pierce the 30-day barrier to intervenors getting deficient notice, and pierce the three-year limitation where good notice simply bumps up against deadline, then it is likely the three-year barrier would not preclude the victim of bad notice.
As to defendant Global's protestation of prejudice, in Nichols the Supreme Court noted that "one of the purposes of a statute of limitations is to protect a defendant from finding himself [or herself] in a situation where, because of a lapse of time, [the defendant] is unable to gather facts, evidence and witnesses necessary to afford [the defendant] a fair defense. . . . [A] party once notified of litigation based on a particular transaction or occurrence, has been provided with all of the notice that statutes of limitations are intended to afford." (Citations omitted; internal quotation marks omitted.) Id., 166.
As in Nichols and as in this instance, one party has filed a timely action against the defendant, and has "thereby placed the [defendant] on timely notice of material facts that gave rise to the plaintiff's claim," and another party is attempting to intervene in that action. Id. Here, as in Nichols, the complaints filed by plaintiff and the intervening plaintiff are essentially factually identical in that they both relate to the same transaction or occurrence and they both contain the same liability allegations against the defendant. In fact, Rivera adopts and incorporates a number of paragraphs from the plaintiff's complaint in his intervening complaint. Therefore, because the intervening complaint "raises [no additional] issues of fact or law necessary to the [defendant's] preparation of [its] defense to the [plaintiff's] claim, the [defendant], by virtue of the plaintiff's timely filed complaint, [was] provided with all of the notice that the statute of limitations are intended to afford." (Internal quotation marks omitted.) Id., 166. And, as to what is truly new to Global, Rivera's injury picture, abundant discovery time and opportunity will be fully available.
Because Rivera was not properly notified pursuant to § 31-293 (a), his claim against the defendant is not barred by the applicable statute of limitations, and plaintiff Rivera's motion to intervene is granted.