Opinion
No. CV02-0470327S
May 4, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE DEFENDANT'S SPECIAL DEFENSE (#137)
This is a bystander emotional distress case brought by the plaintiff, Napoleon Perez, against five defendants, Town of New Milford, OG Industries, Inc., ACM Consulting Corporation, Fletcher-Thompson, Inc. and Premier-New York, Inc. The plaintiff alleges that on October 24, 2000 he and his brother, Luis Ernesto Perez Cancinos, were employed by Premier-New York, Inc. as roofing apprentices. While working side by side on the roof of a school, the roof surface gave way causing the plaintiff's brother to fall through the roof to the floor below. The plaintiff witnessed the fall and went to his brother's aid. The injuries suffered by the plaintiff's brother resulted in his death, as well as causing bystander emotional distress to the plaintiff.
Editor's Note: For another opinion in this matter see 36 Conn. L. Rptr. 459 (Blue, J.) (the exclusion of claims against "design professionals" does not apply to bystander emotional distress claims).
The defendant, Premier-New York, Inc. has filed a Special Defense asserting that the plaintiff's claims are barred by the exclusive remedy provisions of the Connecticut Workers' Compensation Act. In the present motion, the plaintiff moves to strike the special defense asserting (1) tat the Special Defense fails to allege sufficient facts and (2) that bystander emotional distress is not considered a "personal injury" for Worker Compensation purposes.
For the reasons set forth below, the motion to strike the Special Defense is granted.
DISCUSSION A.
The plaintiff's first argument that the Special Defense fails to allege sufficient facts has been addressed by the Amended Special Defense dated March 10, 2004 filed by Premier-New York, Inc. The Amended Special Defense adequately sets forth the factual basis of the defense.
B.
The plaintiff's second argument is that because the plaintiff's bystander emotional distress is not a "physical injury" covered by the workers' compensation act, the act's exclusivity provisions are inapplicable. It is clear that pursuant to General Statutes § 31-275(16)(B)(ii), "physical injury" or "injury" for which an employee may collect workers' compensation does not include mental or emotional impairment unless such impairment arises from a physical injury or occupational disease. The plaintiff correctly asserts that bystander emotional trauma that occurs from witnessing an event at one's workplace is not compensable under the workers' compensation act. Nunes v. State of Connecticut Dept. of Motor Vehicle, 2002 WL 1277862 (Conn. Work. Comp. Com.).
The Amended Special Defense, however, does not assert that the exclusivity provisions of the act bar the plaintiff's claim directly. Rather, the defense asserts that the bystander emotional distress claim is derivative of the deceased brother's claim. The defense further asserts that because the deceased brother's claim is barred, the plaintiff's claim is likewise barred.
In relevant part, the exclusivity provision of the Connecticut Workers' Compensation Act 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 injuries so sustained . . . 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 are abolished other than rights and claims given by this chapter . . .
Section 31-284(a) (emphasis added).
The parties focus on different portions of the statute in support of their respective claims. Premier-New York, Inc. argues that the plaintiff's claim of bystander emotional distress is an action for damages "on account of" personal injury sustained by an employee and is therefore barred. Section 31-284(a). The plaintiff, on the other hand, asserts that the statute by its terms only bars actions between employers and employees "or any representative or dependents of such employee." Id. The plaintiff argues that since the plaintiff, as the employee's brother, is not among the excluded classes, his claim against the employer is not barred.
Resolution of these competing claims presents an issue of statutory construction. When construing a statute the fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Donahue v. Southington, 259 Conn. 783, 788 (2002). Construing § 31-284(a) as a whole, it is evident that the legislature intended to preclude some, but not all, actions for damages by persons other than the employee. That is, the statute explicitly applies exclusivity only to employees, representatives and dependents and would therefore not extend to the plaintiff, because the plaintiff is neither the representative or dependent of the covered employee.
The issue is whether notwithstanding the inapplicability of the explicit exclusivity provisions of § 31-284(a), the exclusivity bar that is applicable to the plaintiff's brother (as an employee) bars the plaintiff as well. Neither party has cited a case that addresses this issue in the context of a claim for bystander emotional distress. There, however, has been litigation on whether a spousal loss of consortium claim is barred under circumstances where the injured spouse is covered by workers' compensation.
In Wesson v. Milford, 5 Conn. App. 369 (1985), the Appellate Court ruled that a wife's claim for loss of consortium due to an injury to her husband arising out of his employment was abolished by § 31-284(a). Id. 378. While the opinion discusses the derivative nature of the loss of consortium cause of action, id. 374, the decision was grounded on the fact that, as a dependent, the wife's claim of loss of consortium fell within the exclusive remedy clause of § 31-284(a). Id. 372. There was no discussion in the opinion of the "on account of" language upon which Premier-New York, Inc. relies.
The clear import of Wesson v. Milford is that derivative actions by representatives or dependents are abolished. In the present case, if a dependent spouse or child were seeking damages for bystander emotional distress, their claim would be barred. As discussed above, however, the plaintiff is not a dependent or representative. The question, as stated above, is whether the derivative nature of the bystander emotional distress claim alone brings it within the exclusive remedy clause.
In this regard, it is useful to again look a loss of consortium claims brought under statutory schemes different than Connecticut. Prior to its amendment in 1985, the Massachusetts workers' compensation statute provided that an employee by coming within the act waived "his" common-law rights. Massachusetts General Laws, c. 152, § 24. In other words, this statute's exclusive remedy provisions applied only to the employee and not dependents or others. Under this statutory framework, the Massachusetts Supreme Judicial Court ruled that, notwithstanding theft derivative nature, loss of consortium claims by families of covered workers were not barred. Ferriter v. O'Connell Sons, Inc., 381 Mass. 507, 413 N.E.2d 690, 703 n. 29 (1980). New Hampshire likewise had a very limited exclusive remedy clause and also ruled that the statute did not bar loss of consortium claims. LaBonte v. National Gypsom Co., 110 N.H. 314, 269 A.2d 634 (1970).
Prior to 1985, Massachusetts had the most limited exclusive remedy clause in the country whereas other states, such as New York, took a much broader approach. See Larsons Workers' Compensation Law, § 101.02[2].
The plaintiff's claim in the present case is comparable to the loss of consortium claims considered by the above-cited Massachusetts and New Hampshire cases. That is, it is a derivative-type action raised by a party outside the reach of the exclusive remedy statute. As these cases make clear, the derivative nature of the action does not independently impose a bar where the applicable exclusive remedy clause does not. Accordingly, this court finds that the plaintiff's action for bystander emotional distress is not barred by § 31-284(a). The motion to strike the Special Defense that asserts such a bar must therefore be granted.
CONCLUSION
For the reasons set forth above, the motion to strike the Special Defense is granted.
So Ordered at New Haven, Connecticut this 3rd day of May 2004.
Devlin, J.