Opinion
No. HHD CV 11 6021109S
October 19, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
In this action, the plaintiff, Pacific Insurance Company, Ltd., a subsidiary of the Hartford Financial Services Group (the Hartford), is attempting to recover on the lien that it allegedly has on a settlement that the defendant, Charles A. Smith, received as a result of an injury that he suffered in a motor vehicle accident. The plaintiff alleges the following facts in the complaint. In May 2007, the defendant was injured when the bus that he was driving during the course of his employment with Peter Pan Bus Lines Trust (Peter Pan), collided with a car that was being driven by Helmut Steinnagel. As a result of the accident, the plaintiff paid a total of $63,960.54 in workers' compensation benefits to the defendant on behalf of Peter Pan, and the Hartford is subrogated to the rights of Peter Pan.
The plaintiff further alleges that in March 2009, the defendant filed an action against Steinnagel, alleging that Steinnagel was negligent in his operation of his car. Thereafter, Peter Pan and the Hartford notified the defendant and Steinnagel that they had paid workers' compensation benefits to the defendant, and that they were asserting a lien against any recovery the defendant might receive as a result of the accident. According to the plaintiff, "upon information and belief," the defendant and Steinnagel reached a settlement pursuant to which Steinnagel's insurer paid the defendant $100,000. Although the defendant was provided with notices and asked to reimburse the Hartford for the workers' compensation benefits that were paid to him, it has not received any reimbursements to date.
In the single count complaint, the plaintiff seeks reimbursement for the amount of benefits that the Hartford paid to the defendant. The plaintiff alleges that under General Statutes § 31-293, the Hartford and/or Peter Pan has a lien on the settlement that the defendant received.
The defendant has filed a motion to dismiss alleging that the court lacks jurisdiction over the subject matter and over the defendant.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).
The defendant's principal argument is that the court lacks jurisdiction over the subject matter of the action and the defendant because the plaintiff failed to intervene in the action between the defendant and Steinnagel in a timely manner and, therefore, failed to comply with § 31-293. As a result, according to the defendant, the plaintiff is not entitled to assert a claim against him under the statute. He adds that the doctrine of res judicata precludes the plaintiff from filing the complaint and therefore he is collaterally estopped from bringing the matter.
The defendant asserts that the court lacks personal jurisdiction over him for the same reasons he contends the court lacks jurisdiction over the subject matter, but he does not provide a separate analysis for that argument in his brief. In any case, it is well-established that the court is "not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); Barber v. Dryer, Superior Court, judicial district of New Haven, Docket No. CV 10 6010712 (July 25, 2011, Burke, J.). The defendant's failure to brief the issue of personal jurisdiction deems it waived. The court need only address whether it has proper subject matter jurisdiction over the action.
In response, the plaintiff asserts that the court has subject matter jurisdiction because it complied with § 31-293 by properly asserting a lien against any settlement between the defendant and Steinnagel, and therefore the plaintiff is entitled to sue under the statute.
As to the defendant's argument claiming the doctrine of res judicata, "[r]es judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994). Therefore, the court will not further address that argument and will only address the defendant's principal argument.
General Statutes § 31-293 provides 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 affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee [or] the employer . . . brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate . . . No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him . . . Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer [or] its workers' compensation insurance carrier . . . pursuant to the provisions of this chapter, the employer [or] insurance carrier . . . shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer [or] insurance carrier . . . shall give written notice of the lien to the party prior to such judgment or settlement." (Emphasis added.)
The cases relied upon by the defendant were decided on the basis of the statute that was in effect before the legislature amended it in 1993 to add the lien provisions provided for in the last sentence of § 31-296(a). As the Supreme Court has explained: "Section 31-293(a) . . . provides various procedures by which an employer, who has paid or by award has become obligated to pay workers' compensation benefits, may seek reimbursement of such benefits. The statutory lien provision at issue in the present case is one such procedure. This particular provision was enacted as an amendment to § 31-293(a) in 1993. See Public Acts 1993, No. 93-228, § 7 ( P.A. 93-228). Prior to P.A. 93-228, § 7, § 31-293(a) provided only two ways in which an employer could recover workers' compensation benefits payable to an employee; the employer either could intervene in the employee's action against the third party tortfeasor or could bring its own action directly against that tortfeasor." Thomas v. Dept. of Developmental Services, 297 Conn. 391, 400-01, 999 A.2d 682 (2010).
In at least two of those cases, the court specifically noted that § 31-293(a) had been amended, subsequent to the date of the injuries at issue therein, to add the lien provision. See Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 162-63 n. 8, 716 A.2d 71 (1998); Libby v. Goodwin Pontiac-GMC Truck, Inc., CT Page 22090 241 Conn. 170, 178-79 n. 7, 695 A.2d 1036 (1997).
In discussing the present version of the statute, which is the one that applies to the present action, the Supreme Court has explained: "Section 31-293 is a detailed scheme governing the parties' rights in third party workers' compensation scenarios. Its primary effect is to provide a mechanism for an injured employee to assert a claim against the party allegedly liable for his injury, notwithstanding the employee's statutory claim for workers' compensation. The statute also allows an employer who is obligated to pay worker's compensation benefits either to intervene in the employee's action or, in the event that the employee fails to prosecute his claim, to bring an independent action against the alleged tortfeasor. In either case, the rights of each party with respect to the other are set forth clearly, as is the proper disposition of any damages awarded in an action governed by § 31-293. If the employer chooses not to intervene in an action brought by the employee, it still may recover a share of any damages in its capacity as a lienor . . .
"Finally, the rights of each party are protected by the following critical provision: `No compromise with the [alleged tortfeasor] by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him.' General Statutes § 31-293(a). This provision protects each party, whether the intervening employer or the real party in interest, i.e., the injured employee, by permitting the nonsettling or nonassenting party to retain all of its rights under the statute despite any unilateral settlement by the other party with the alleged tortfeasor." (Internal quotation marks omitted) Southbury v. Gonyea, 301 Conn. 405, 411-12, 24 A.3d 444 (2011). Thus, "in addition to [an employer's] right to intervene or initiate its own independent cause of action, [an employer that has] perfected its lien rights to the settlement proceeds . . . [is] statutorily entitled . . . to any settlement received by the employee from the [tortfeasor]." (Citations omitted.) Id., 416.
This is consistent with the following concept: "It is . . . elementary that the claimant should not be allowed to keep the entire amount both of his or her compensation award and of the common-law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse it for its compensation outlay, and to give the employee the [remaining amount]." (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 371, 984 A.2d 705 (2009). As the courts have explained there is a "well established public policy embodied in the act that double compensation for an injury is to be avoided." CT Page 22089 Thomas v. Dept. of Developmental Services, supra, 297 Conn. 405.
Here, the plaintiff alleges that, upon learning of the lawsuit between the defendant and Steinnagel, it sent notice to the defendant and Steinnagel that it was "asserting a lien against any recovery," and the defendant does not dispute this allegation. Thus, regardless of whether the plaintiff intervened in the action between the defendant and Steinnagel, it has a legal right to assert its right to reimbursement under the express language of § 31-293 as a lienor, and the case law, as long as it has perfected its lien as required by the statute. As the Supreme Court has stated: "If the employer chooses not to intervene in an action brought by the employee, it still may recover a share of any damages in its capacity as a lienor." (Internal quotation marks omitted.) Southbury v. Gonyea, supra, 301 Conn. 411. Therefore, the plaintiff has a legal right to bring suit under § 31-293 as a lienor, and the court has subject matter jurisdiction over the plaintiff's action.
For the foregoing reasons, the defendant's motion to dismiss is denied.