DURNIAK v AUGUST WINTER AND SONS, INC Conn 1277 Cite as 610 A2 1277 (Conn 1992) of employee's eath Employer intervene been no formal eman mae upon the responent for support prior to this petition We agree General Statutes 46b-215 provies in pertinent part: "The superior court or a family support magistrate shall have authority to make an enforce orers for payment of support against any person who neglects or refuses to furnish necessary support to a chil uner the age of eighteen, accoring to his or her ability to furnish such support " (Emphasis ae) There is nothing in this language, or in the important public policy that it reflects, to suggest that the obligation of a parent to support her chil, accoring to her ability, is subject to a conition preceent of a formal eman That obligation is ongoing, an oes not require the trigger of a request by those persons who are shoulering that responsibility The orer is reverse, an the case is remane for a new hearing on the petition In this opinion PETERS, CJ, an CALLAHAN an GLASS, JJ, concurre BERDON, Associate Justice, concurring I concur in the result to seek reimbursement of worke:cs' compensation benefits Tort-feasor amene answer to assert employer's negligence as special efense The Unite States District Court for the District of Connecticut, N e vas, J, certifie question of law regaring valiity of efense The Supreme Court, Peters, CJ, hel that thir-party tort-feasor may not raise negligence of employer as special efense when employer intervenes in personal injury action as party plaintiff to secure employer's statutory right to reimbursement of workers' compensation benefits Certifie question answere 1 Workers' Compensation <P45 Responsibility for carving out exceptions to provisions of Workers' Compensation Act belonge to legislature an not to court CGSA 31-284(a), 31-293(a) 2 Workers' Compensation <P222S 1 Thir-party tort-feasor may not raise negligence of employer as special efense when employer has intervene in employee's personal injury action as party plaintiff to secure employer's statutory right to reimbursement of workers' compensation benefits CGSA 31-284(a), 31-293(a), 52-572h 222 Conn 775 _Jz 75 Barbara DURNIAK, Aministratrix (ESTATE OF Michael DURNIAK), et al v AUGUST WINTER AND SONS, INC No 14526 Supreme Court of Connecticut Argue June 3, 1992 Decie July 14, 1992 Action was brought in feeral court against thir-party tort-feasor arising out Jl 76 April Haskell, with whom was Joanne T Belisle, Glastonbury, for appellant (intervening plaintiff) Michael A Fitzhugh, with whom were Lori Watson an, on the brief, R Paul Roecker, Boston, Mass, for appellee (efenant) Before PETERS, CJ, an CALLAHAN, GLASS, COVELLO an BORDEN, JJ PETERS, Chief Justice Our statutes permit an injure employee to pursue a personal injury action against a thir party tortfeasor, even though the employee's exclusive remey against his employer is the recovery of workers' compensation benefits General Statutes 31-
1278 Conn 610 ATLANTIC REPORTER, 2 SERIES 284(a) ~77an 31-293(a) 2 The issue in this case is whether the thir party tortfeasor may raise the negligence of the employer as a special efense when the employer has intervene in the personal injury action as party plaintiff in orer to secure the employer's statutory right to reimbursement of workers' compensation benefits 11 78 The plaintiff, Barbara Durniak, iniviually an as aministratrix of the estate of Michael Durniak, brought this action in the Unite States District Court to recover for negligence an for breach of contract because of fatal injuries suffere by her eceent on a construction site allegely uner the control of the efenant, August Winter an Sons, Inc The eceent's employer, CR Meyer an Sons Company (ern- 1 General Statutes 31-284 provies in relevant part: "(a) An employer shall not be liable to any action for amages on account of personal injury sustaine by an employee arising out of an in the course of his employment or on account of eath resulting from personal injury so sustaine, but an employer shall secure compensation for his employees as follows, except that compensation shall not be pai when the personal injury has been cause by the wilful an serious misconuct of the injure employee or by his intoxication All rights an claims between employer an employees, or any representatives or epenents of such employees, arising out of personal injury or eath sustaine in the course of employment as aforesai are abolishe other than rights an claims given by this chapter, provie nothing herein shall prohibit any employee from securing, by agreement with his employer, aitional benefits from his employer for such injury or from enforcing such agreement for aitional benefits" 2 General Statutes 31-293 provies in relevant part: "LIABILITY OF THIRD PERSONS TO EMPLOYER AND EM PLOYEE (a) When any injury for which compensation is payable uner the provisions of this chapter has been sustaine uner circumstances creating in some other person than the employer a legal liability to pay amages in respect thereto, the injure employee may claim compensation uner the provisions of this chapter, but the payment or awar of compensation shall not affect the claim or right of action of such injure employee against such other person, but such injure employee may procee at law against such person to recover amages for such injury; an any employer having pai, or having become obligate to pay, compensation uner the provisions of this chapter may bring an action against such other person to recover any amount that he has pai or has become obligate to pay as compensation to such inployer), then file a complaint, as intervening plaintiff, for reimbursement of workers' compensation benefits in accorance with 31-293(a) Thereafter, the efenant amene its answer to a a thir special efense alleging that the eceent's injuries ha resulte from the negligence of the intervening plaintiff The District Court referre to the magistrate a motion by the intervening plaintiff to strike the thir special efense The magistrate recommene that the motion be grante but suggeste that the District Court consier requesting certification of the interpretation of 31-293(a) to this court pursuant to General Statutes 51-199a an Practice Book 4168 We grante the District Court's request for certification, an we jure employee If such employer an employee join as parties plaintiff in such action an any amages are recovere, such amages shall be so apportione that the claim of the employer, as efine in this section, shall take preceence over that of the injure employee in the procees of such recovery, after the euction of reasonable an necessary expenitures, incluing attorneys' fees, incurre by the employee in effecting such recovery The renition of a jugment in favor of the employee or the employer against such party shall not terminate the employer's obligation to make further compensation, incluing meical expenses, which the compensation commissioner thereafter eems payable to such injure employee If the amages, after eucting the employee's expenses as provie above, are more than sufficient to reimburse the employer, amages shall be assesse in his favor in a sum sufficient to reimburse him for his claim, an the excess shall be assesse in favor of the injure employee No compromise with such thir person by either employer or employee shall be bining upon or affect the rights of the other, unless assente to by him For the purposes of this section the employer's claim shall consist of (1) the amount of any compensation which he has pai on account of the injury which is the subject of the suit an (2) an amount equal to the present worth of any probable future payments which he has by awar become obligate to pay on account of such injury The wor 'compensation', as use in this section, shall be construe to inclue not only incapacity payments to an injure employee an payments to the epenents of a ecease employee, but also sums pai out for surgical, meical an hospital services to an injure employee, the one-thousan-ollar burial fee provie by law an payments mae uner the provisions of sections 31-312 an 31-313"
DURNIAK v AUGUST WINTER AND SONS, INC Conn 1279 Cite as 610 A2 1277 (Conn 1992) answer the certifie question, 3 "No" 485, 488, 528 A2 826 (1987) Secon, the The recor certifie by the District Court statute protects an employer by allowing provies the following factual information the employer to obtain reimbursement for The plaintiff's eceent, a carpenter em- workers' compensation benefits from a ploye by the intervening plaintiff, suf- thir party tortfeasor, either by becoming fere fatal injuries when he fell through a an intervening plaintiff in the employee's hole in the floor of a construction site The cause of action or by bringing a separate plai~ti~f'~ complaint alleges tha~ the ece- action erivative of the employee's cause of ents m~ury an eath were attrj?u~ble to action! Thir, the employer's statuthe negligence of the efenant m Its con- tory right to subrogation of the procees of ufct at tt~efc?lnstruction sit~ an to bthe the employee's claim against the tortfeasor e en an s a1 ure to mamtam proper ar- Imp 1 emen t s th e pu bl" IC po 1 Icy o f prencaes or guarrails IIUL79accorance with ~ bl b con t rae t spec1 "f" 1ca t" IOns Th e e f en an t' s ven ng?so ou e recovery y an InJUre thir special efense alleges that whatever employee Enqu~st v General Datacom, injuries the plaintiff's eceent might have 21 8 Conn 19, 26, 5~7 A2 1029 (1991) suffere resulte from the negligence of the employer In his ruling on the employer's motion to strike, the magistrate note that the text of 31-293 neither preclues nor authorizes the special efense raise by the efenant He conclue, however, that particular weight shoul be given to the absence of statutory authorization for the efense Because workers' compensation is governe by an "explicit legislative scheme," he hel that one woul reasonably expect to fin some express evience of legislative intent if the statutory claim for reimbursement provie in 31-293(a) were to be open to the "fault-base contest" propose by the efenant He therefore rule that, absent a certification of the question to this court, the motion to strike shoul be grante The District Court then initiate the certification process that le to the present proceeings Our analysis of the competing rights of a efenant an an intervening employer is guie by four overlapping principles that inform the rights establishe by 31-293(a) First, the statute protects an injure employee by allowing the employee to sue a thir party tortfeasor in a private cause of action for amages, such as pain an suffering, that are uncompensate by a workers' compensation awar Skitromo v Merien Yellow Cab Co, 204 Conn 3 The certifie question is: "Is it proper for a efenant to raise the negligence of the plain tiffs employer as a special efense in answer to the intervening complaint of the plaintiffs em- Fourth, the employer s statutory right to reimbursement reenforces the public policy that, between the employer an the employee, workers' compensation provies the exclusive remey for personal injury to the employee Bouley v Norwich, 222 Conn 744, 755-56, 610 A2 1245 (1992); Sgueglia v Milne Construction Co, 212 Conn 427, 433, 562 A2 505 (1989) Bearing these principles in min, we turn to the language of 31-293(a) to see whether it authorizes the special efense against the employer that the efenant seeks to assert in this case The language is illuminating both for what it says an for what it oes not say The statute unconitionally authorizes reimbursement to the employer "[i]f such employer an employee join as parties plaintiff in such action an any amages are recovere" It provies for the apportionment of any amages awar so that "the claim of the employer, as efine in this section, shall take preceence over that of the injure employee in the procees of such recovery, after the euction of reasonable an necessary expenitures, incluing attorneys' fees, incurre by the employee in effecting such recovery" Although the statute thus recognizes the propriety of some euctions as offsets to the employer's statutory subrogation claim, the statute oes not make ployer in a case where the intervening com plaint is base solely upon the statutory rights accore the plaintiffs employer uner Connecticut General Statute[s] 31-293?"
1280 Conn 610 ATLANTIC REPORTER, 2 SERIES the employer's negligence a groun for limiting the employer's recovery The efenant maintains, however, that we shoul attach significance to the absence of language in 31-293(a) abolishing the common law rights of thir party tortfeasors He asks us to infer, from this absence, a legislative intent to treat the relationship between the tortfeasor an the employer as incorporating common law precepts of contributory or comparative negligence Such an inference is unwarrante [1, 2] Jl 81 We have repeately observe that our act represents a complex an comprehensive statutory scheme balancing the rights an claims of the employer an the employee arising out of work-relate personal injuries Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature an not to the courts Bouley v Norwich, supra, 222 Conn at 760-61, 610 A2 1245; Panaro v Electrolux Corporation, 208 Conn 589, 605, 545 A2 1086 (1988); Mingachos v CBS, Inc, 196 Conn 91, 106, 491 A2 368 (1985) The legislature manifestly has the competence to enact statutes relating workers' compensation to tort reform See, eg, General Statutes 52-572r(c) Absent such express legislative intervention, we have hel that we shoul not assume that the legislature intene to create an exception for aggravate torts; Mingachos v CBS, Inc, supra; or for uninsure motorist benefits; Bouley v Norwich, supra, 222 Conn at 761, 610 A2 1245 It is similarly inappropriate, in this case, for us to unermine the traeoffs that unerlie workers' compensation by im- 4 General Statutes 52-572h provies in relevant part: "(b) In causes of action base on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover amages resulting from personal injury, wrongful eath or amage to property if the negligence was not greater than the combine negligence of the person or persons against whom recovery is sought incluing settle or release persons un er subsection (n) of this section The economic or noneconomic amages allowe shall be iminishe in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be etermine pursuant to subsection (f) of this section porting contributory or comparative negligence into the no-fault workers' compensation reimbursement program See J King, "The Exclusiveness of an Employee's Workers' Compensation Remey Against His Employer," 55 TennLRev 405, 411 (1988) This conclusion oes not create an irreconcilable conflict between the workers' compensation statute an General Statutes 52-572h, 4 the comparative neg!e_ence782 statute By its own terms, the comparative negligence statute applies only to "causes of action base on negligence" General Statutes 52-572h(b) Accoringly, its terms o not govern statutory causes of action that have no common law counterpart Lukas v New Haven, 184 Conn 205, 212, 439 A2 949 (1981); Belanger v Village Pub I, Inc, 26 ConnApp 509, 512-14, 603 A2 1173 (1992) Because an employer's right to obtain reimbursement from a thir party tortfeasor is a statutory claim that is erive in its entirety from 31-293(a); Skitromo v Merien Yellow Cab Co, supra, 204 Conn at 489, 528 A2 826; Robinson v Faulkner, 163 Conn 365, 377-78, 306 A2 857 (1972); the employer's claim oes not fall within the compass of 52-572h Our conclusion comports with the result reache in a number of Superior Court ecisions in this state an in the majority of cases ecie in other jurisictions "[I]t is generally hel that the employee cannot be met with a efense that his own employer's negligence contribute to the injury" 2B A Larson, Workmen's Compensation Law (1989) 7522, p 14-578 5 ; Strou v "(c) In a negligence action to recover am ages resulting from personal injury, wrongful eath or amage to property occurring on or after October 1, 1987, if the amages are etermine to be proximately cause by the negligence of more than one party, each party against whom recovery is allowe shall be liable to the claimant only for his proportionate share of the recoverable economic amages an the recoverable noneconomic amages except as provie in subsection (g) of this section" 5 A ifferent result might follow if the special efense allege not merely the negligence of the employer but inclue some other basis for liability such as the existence of an inepenent
ST PAUL FIRE AND MARINE INS CO v SHERNOW Conn 1281 Cite as 610 A2 1281 (Conn 1992) Dorr-Oliver, Inc 112 Ariz 403, 409, 542 No costs shall be taxe to either party P2 1102, llo?_usa(1975); Pyles v Briges, 283 So2 394, 396 (FlaApp1973); Ameri- curre can Ins Co v Duo Fast Dixie, Inc, 367 So2 415, 416-17 (LaApp1979); C & K Lor, Inc v Carter, 74 MApp 68, 75, 536 A2 699 (1988); Van Hook v Harris Corporation, 136 MichApp 310, 312-13, 356 NW2 18 (1984); Nyquist v Batcher, 235 Minn 491, 498, 51 NW2 566 (1952); Biloeau v Oliver Stores, Inc, 116 NH 83, 88, 352 A2 741 (1976); Taylor v Deigarno Transportation, Inc, 100 NM 138, 141, 667 P2 445, 448 (1983); Pellone v Stratfor Tower, Inc, 56 AD2 647, 648, 891 NYS2 896 (1977); Layman v Braunschweigische Maschinenbauanstalt, Inc, 343 NW2 334, 350 (ND1983); Bolman v Mt Hoo Chemical Corporation, 288 Or 121, 139, 602 P2 1072 (1979); Bristol Telephone Co v Weaver, 146 1'enn 511, 522, 243 SW 299 (1921); Varela v American Petrofina Co, 658 SW2 561, 562 (Tex1983); Clark v Chicago, M, St P & PR Co, 214 Wis 295, 304-305, 252 NW 685 (1934) Although we recognize that some state courts have reache a ifferent result, some of these cases turn, at least in part, on statutory configurations that iffer from those that prevail in this state See, eg, Witt v Jackson, 57 Cal2 5'7, 72, 366 P2 641, 17 CalRptr 369 (1961); Runcorn v Shearer Lumber Proucts, Inc, 107 Iaho 389, 395-96, 690 P2 324 (1984); Brown v Keill, 224 Kan 195, 206, 580 P2 867 (1978); Leonar v Johns-Manville Sales Corporation, 309 NC 91, 97, 305 SE2 528 (1983) We therefore agree with the interpretation of Connecticut law reflecte in Cyr v FS Payne Co, 112 FSupp 526 (DConn), aff', 208 F2 356 (2 Cir1953), an isagree with Cirrito v Continental Can Co, 519 FSupp 638 (DConn1981) The certifie question is answere: "No" relationship between the efenant an the employer See Ferryman v Groton, 212 Conn 138,!43-45, 561 A2 432 (1989); 2B A Larson, Workmen's Compensation Law (1989) 7600, p 14-644 A ifferent result might also follow if, instea of relying on a special efense alleging the inter- 610 A2-29 In this opinion the other Justiees con- 222 Conn 823 J zast PAUL FIRE AND MAJRINE INSURANCE COMPANY v Robert SHERNOW, DDS et al No 14422 Supreme Court of Connecticut J 24 Argue Feb 11, 1992 Decie July 14, 1992 Insurer appeale from orer of the Superior Court, Juicial District of Waterbury, Langenbach, J, which ismisse its eclaratory jugment action regaring question of inemnity of entist uner ental malpractice insurance The Appellate Court, 22 ConnApp 377, 577 A2 1093, reverse an remane On reman, the Superior Court, McWeeny, J, entere jugment for insurer in part, an insurer appeale an intervening patient cross-appeale Transferring appeal to itself, the Supreme Court, Covello, J, hel that professional liability portion of malpractice insurance policy covere entist for allege sexual assault on patient after negligently aministering nitrous oxie, which cause irect, physical injury to patient Affirme Boren, J, issente an file opinion in which Callahan, J, joine vening employer's negligence, the efenant, having file a general enial, sought to make an evientiary showing that it was the employer's conuct rather than the efenant's conuct that ha proximately cause the employee's injuries See Williams v Union Carbie Corporation, 734 SW2 699, 703 (TexCtApp1987)