Opinion
No. CV 09-5032748-S
October 25, 2011
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
On September 4, 2009, the plaintiff, TRC Companies, Inc., (TRC) filed a complaint against the defendant ABM Janitorial Services, Inc. (ABM) pursuant to General Statutes § 31-293(a), alleging that it has paid over $25,000 under the Workers' Compensation Act to its employee, Karen Vetrano (Vetrano), who was allegedly hurt on the job due to the negligence of ABM, and may be required to pay more in the future. The plaintiff's complaint alleges that Vetrano was walking through a copy room that ABM was obligated to maintain and slipped, thereby injuring herself. It further alleges that her fall was caused by the negligence of ABM's agent or employee in that it negligently allowed liquid to accumulate on the floor of the copy room and failed to warn Vetrano of the danger.
General Statutes § 31-293(a) 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, the employer or the custodian of the Second Injury Fund 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. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section . . ."
On January 14, 2011, Vetrano filed a motion to intervene and an intervening complaint. The motion was granted by the court, Miller, J., on February 4, 2011. TRC has since moved for summary judgment, with supporting memorandum, on the ground that Vetrano's complaint is barred by the applicable statute of limitations. The issues raised by the motion have been fully briefed by the parties and was heard on the September 19, 2011 short calendar.
Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
ABM argues that since General Statutes § 52-584 provides a two-year limitation on actions brought for negligence and Vetrano did not file either a motion to intervene or an intervening complaint until January 14, 2011 (which was three and a half years after the alleged slip and fall) her claim is time-barred. Vetrano does not dispute that she did not file her intervening complaint until after § 52-584's two-year period. She points out, however, that as long as the underlying action is filed within the two-year period in § 52-584, § 31-293(a) provides the intervenor with 30 days to file suit from the date proper statutory notice as required by § 31-293(a) is given.
General Statutes § 52-584 provides, in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
ABM anticipated and addressed this argument in its memorandum, and argued that since TRC never gave notice of the action to Vetrano as required § 31-293(a), the statute cannot be tolled by 30 days from receipt of notice. Vetrano does not dispute that she never received notice of any kind from TRC, but argues nonetheless that if notice under § 31-293(a) was never given, she can intervene at any point in the proceedings, regardless of the 30-day limitation.
At oral argument, counsel for Vetrano represented that he became aware of this action after being informed of its existence by someone with knowledge of the action.
There is no doubt that the thirty-day from receipt of notice provision in § 31-293 supercedes the two-year limitation in § 52-584. Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 170, 716 A.2d 71 (1998) ("[W]e conclude 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)").
It is insignificant that Nichols involved a situation where the employer did not intervene within two years in the employee's action, and in the case at bar the employee did not intervene within two years in the employer's action. See Worsham v. Greifenberger, 242 Conn. 432, 442, 698 A.2d 687 ("Employers and employees have generally been treated identically under the notice and abatement provisions of § 31-293"); Brasile Daughters, Inc. v. Jacobs, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 04 5000234 (February 18, 2005, Lopez, J.) [ 38 Conn. L. Rptr. 762] (rejecting the argument that Nichols was intended to apply only when employers were intervening in employee's suits).
ABM attempts to draw a distinction between the case at bar and Nichols by pointing out that the action in Nichols was filed eleven days after the expiration of the two-year limitation, while in this case Vetrano's complaint was filed almost a year and a half after the statute arguably has run. The facts of Nichols directly parallel the facts of this case, with the exceptions of the lapse of time between the usual running of the two-year limitation and the intervention, and the fact that in Nichols the intervening plaintiff was actually notified of the pendency of the original action. In Nichols, the court was not persuaded by the argument that the defendant would be prejudiced by the addition of the intervening plaintiff, stating:
"Thus, in circumstances where, as here, the employee already has filed a timely action against the third party tortfeasor, no significant purpose would be served by requiring the employer to intervene within the period of the applicable statute of limitations. We previously have recognized that one of the purposes of a statute of limitations is to protect a defendant from finding himself . . . in a situation where, because of the lapse of time, [the defendant] is unable to gather facts, evidence, and witnesses necessary to afford [the defendant] a fair defense . . . Moreover, we have observed that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford . . . In this case, the plaintiff's action, which was filed within the applicable two-year limitation period for negligence claims, placed the defendants on timely notice of the material facts that give rise to the plaintiff's claim. [The intervenor's] complaint repeats all the allegations of the original plaintiff's complaint, along with the following additional allegations: (1) the plaintiff was an employee of [the intervenor]; (2) he was injured in the course of his employment; and (3) [the intervenor] was obligated to pay workers' compensation benefits to him. Because none of these additional allegations raises issues of fact or law necessary to the defendants' preparation of their defense to the employee's claim, the defendants, by virtue of the plaintiff's timely filed complaint, were provided with all the notice that statutes of limitations are intended to afford." (Citations omitted; Internal quotation marks omitted.) Id., 165-66.
Similarly, in the case at bar, no new material allegations were included in Vetrano's complaint. All the facts, evidence, and witnesses necessary for the defendant to prepare a fair defense would have been prepared in the initial action. Thus the defendant is not prejudiced by the filing of the intervenor's complaint, despite the passage of time. Although the Nichols court noted the "significance" that the tolling of the § 52-284 in that case "would toll the statute of limitations for, at most, thirty days" this does not change the fact that the defendant suffered no prejudice by the later filing in the present case. Id., 167.
This result is bolstered by the rule first enunciated in Lakewood Metal Products, Inc. v. Capital Machine Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967) that "[a]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given, the time does not begin to run." See, e.g, Rana v. Ritacco, 236 Conn. 330, 336, 672 A.2d 946 (1996); Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994) (repeating rule). See also, Misiurka v. Maple Hills Farms, Inc., 15 Conn.App. 381, 385, 544 A.2d 673 (1988) ("Failure to notify an employer of pending litigation pursuant to General Statutes § 31-293 allows an employer to enter the action at any point in the proceedings). (Emphasis added.)
In Nichols, as noted, the employer was notified of the employee's action, albeit at the tail end of the two-year period. Reading the rule in Nichols in conjunction with the rule in Lakewood Metal produces the following result: in a conflict between the 30 day period to file an action after notice is given under § 31-293(a) and the two-year statute of limitations, § 52-584, the 30-day period controls. It does not necessarily follow from this that the two-year period can only be extended by a mere 30 days, as the defendant urges, because there is no guarantee the employee will be notified of the action during the two-year period. Such a reading would strongly undercut Lakewood Metal and its progeny. Therefore, if a defendant is never properly notified under § 31-293, the 30-day period has not started to run, and the defendant can join in the action. This, coupled with the fact that since the defendant is not prejudiced by the lapse of time between the running of the statute and the intervening complaint, mandates that ABM's motion for summary judgment must be denied.
This court is not the first to take this view. See Gurliacci v. Mayer, 218 Conn. 531, 578-79, 590 A.2d 914 (1991) (ruling that city was not barred by 30-day period under § 31-293(a) where it never received proper statutory notice of commencement of action, even if it was actually aware of action, when it moved to intervene over four years past expiration of two-year statute); Light Sources, Inc. v. Global Equipment Corp., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 01 0076465 (January 10, 2003, Nadeau, J.) [ 33 Conn. L. Rptr. 633] (Granting employee's motion to intervene by holding that intervening plaintiff was not properly given notice, and that defendant was not prejudiced under Nichols when motion to intervene filed almost four years after employee's injury); Fire Systems, Inc. v. Semac Electrical Contractors, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 96 0382930 (June 22, 1999, Devlin, J.) ( 24 Conn. L. Rptr. 684) (Concluding that employee could intervene in employer's suit where employer never provided employee with notice under § 31-293(a), where employee moved to intervene almost three years after the expiration of the two-year statute).
CONCLUSION
Vetrano has not received proper statutory notice of TRC's claim against ABM, which excuses her from filing within the two-year period pursuant to § 52-284. Because the notice provisions of § 31-293(a) tolls § 52-284, and because the defendant is not prejudiced in this case by the passage of time, the defendant's motion for judgment is hereby denied.