Adm'r v. Ferraro

• Decision Date: 31 August 2010
• Docket Number: No. 30239.,30239.
• Citation: 123 Conn.App. 443,3 A.3d 92
• Court: Connecticut Court of Appeals
• Parties: Charles R. HODGATE, Administrator (Estate of Tavis W. Hodgate) v. Amanda A. FERRARO et al.

123 Conn.App. 443

3 A.3d 92

Charles R. HODGATE, Administrator (Estate of Tavis W. Hodgate)

v.Amanda A. FERRARO et al.

No. 30239.

Appellate Court of Connecticut.

Argued Jan. 11, 2010.

Decided Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Robert I. Reardon, Jr., New London, with whom were Kelly E. Reardon and, on the brief, Amanda L. Sisley, New London, for the appellant (plaintiff).

Nicole C. Chomiak, with whom, on the brief, was Stacey L. Pitcher, Cheshire, for the appellee (defendant Wellington Sales & Installation Company, Inc.).

Ralph W. Johnson III, with whom was Paul D. Meade, Hartford, for the appellee (defendant Roger A. Silva).

DiPENTIMA, GRUENDEL and LAVINE, Js. ^*

DiPENTIMA, J.

The plaintiff, Charles R. Hodgate, administrator of the estate of Tavis W. Hodgate, ¹ appeals from the summary judgment rendered in favor of the defendants Roger A. Silva and Wellington Sales & Installation Company, Inc. (Wellington). On appeal, the plaintiff claims that the court improperly (1) determined that Massachusetts law, rather than Connecticut law, applied to the present case, (2) concluded that no genuine issue of material fact existed and (3) prevented the plaintiff from conducting discovery. ² We are not persuaded by the plaintiff's claims and, accordingly, affirm the judgment of the trial court.

The operative complaint, filed on March 10, 2006, set forth the following allegations. Wellington, a Massachusetts corporation, employed Silva as a foreman with supervisory responsibilities and duties. On October 22, 2003, at approximately 8:30 p.m., Silva drove a van, owned by Wellington, in a northbound direction on Interstate 95 in Stonington. The decedent, who also was an employee at Wellington, was a passenger in the van. At this time, Amanda A. Ferraro was driving a motor vehicle while under the influence of alcohol in the northbound lane of Interstate 95. Her vehicle cut across travel lanes without warning, causing Silva to swerve the van. As a result, the van left the road and rolled over several times. The decedent was ejected from the van, and he suffered fatal injuries.

The complaint set forth the following causes of action relevant to the plaintiff's appeal: negligence, statutory recklessness and common-law recklessness against Silva and his employer Wellington (counts four through six); negligence, statutory recklessness and common-law recklessness against L & J Associates, Inc. (L & J), ³ another employer of Silva (counts ten, thirteen and fifteen); and negligence, statutory recklessness and common-law recklessness against Silva (counts eleven, twelve and fourteen). ⁴ Both Silva and Wellington raised, as a special defense, the exclusivity doctrine of the Massachusetts workers' compensation law; see Mass. Laws Ann. c. 152 (2000); which the plaintiff denied. ⁵ Silva filed a motion for summary judgment pursuant to Practice Book § 17-44 et seq. The basis for this motion was that the plaintiff's claims against him were barred by Massachusetts law, which “bars such claims by one employee against a fellow employee.” Wellington filed a similar motion for summary judgment on January 7, 2008. The plaintiff objected to those motions.

The court, Shapiro, J., heard argument on both summary judgment motions on June 4, 2008, and issued its decision on August 4, 2008. It began its analysis with a discussion on the choice of law issue and highlighted the significant difference between Connecticut and Massachusetts law with respect to the exclusive aspect of workers' compensation. “Connecticut and Massachusetts law differ as to whether claims are barred against a fellow employee where the action is based on the fellow employee's negligence in the operation of a motor vehicle. General Statutes § 31-293a provides in relevant part [that] [i]f an employee or, in the case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless ... the action is based on the fellow employee's negligence in the operation of a motor vehicle.... In contrast, Mass. Gen. Laws c. 152, § 24, concerning claims against employers, which also applies to a claim by an employee who is injured in the course of employment against a fellow employee acting in the course of employment, provides no such exception. See Mendes v. Tin Kee Ng, 400 Mass. 131, 132, 507 N.E.2d 1048 (1987).” ⁶

The court, using the “most significant relationship test” as established by our Supreme Court in Jaiguay v. Vasquez, 287 Conn. 323, 350, 948 A.2d 955 (2008), concluded that Massachusetts law governed. Accordingly, pursuant to Massachusetts law, no motor vehicle exception existed with respect to the exclusive nature of the workers' compensation law.

The court then determined that Silva and the decedent were joint employees and, therefore, coemployees of Wellington, L & J or both and that, when the accident occurred, they were returning to Massachusetts from a job site in New York and, thus, were acting in the course of their employment. Therefore, the court granted the motions for summary judgment. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly determined that Massachusetts law, rather than Connecticut law, applied to the present case. Specifically, he argues that the court (1) should not have applied retroactively our Supreme Court's decision in Jaiguay and (2) improperly concluded, even if Jaiguay applies, that Massachusetts law governed the present case. We reject both of these arguments.

A

The plaintiff argues that the court should not have applied retroactively our Supreme Court's decision in Jaiguay. Specifically, he contends that “[a]ll parties have proceeded during the pendency of this matter with the reasonable belief that Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 187, 588 A.2d 194 (1991), provided the applicable framework by which the court would decide which state's laws are applicable to the matter at hand.” Further he maintains that, pursuant to the three-pronged test set forth in Neyland v. Board of Education, 195 Conn. 174, 179-80, 487 A.2d 181 (1985), the holding in Jaiguay should not have been applied retroactively. The defendants counter that the plaintiff's claim regarding the applicability of Jaiguay was raised for the first time on appeal and that review of such claim is barred by the invited error doctrine. We agree with the defendants and decline to review the merits of this claim.

The following additional facts are necessary for our discussion. Silva's motion for summary judgment was filed on January 4, 2008. Wellington filed its motion for summary judgment three days later on January 7, 2008. The plaintiff filed his objection to both motions on May 6, 2008. The court held a hearing on the summary judgment motions on June 4, 2008. Our Supreme Court's decision in Jaiguay was released officially on June 17, 2008.

The plaintiff filed a motion, dated June 13, 2008, for permission to file supplemental briefs and to present supplemental argument in opposition to the defendants' motions for summary judgment. The motion argued that the supplemental material was necessary as a result of the Jaiguay decision. The motion stated: “Due to this radical change in the choice of law analysis governing this case, this [c]ourt should allow the plaintiff to file a supplemental brief as to the impact of Jaiguay v. Vasquez ra, 287 Conn. at 323, 948 A.2d 955 on the pending motions for summary judgment. Further, this [c]ourt should allow the plaintiff to present oral argument ... on the application of the Supreme Court's new rule to the facts of this case prior to this [c]ourt's entry of an order relating to the defendants' motions for summary judgment.” (Emphasis added.)

On the same date, the plaintiff filed a motion for discovery pursuant to Practice Book § 13-26 et seq. This motion noted the release of Jaiguay and claimed that further discovery was necessary for this new choice of law test. In his reply brief in support of the motion for permission to file supplemental briefs and to present supplemental argument, dated June 23, 2008, the plaintiff argued: “ As a result of the Connecticut Supreme Court's decision in Jaiguay, this [ c ] ourt will not have the opportunity to resolve the dispute between the par ties as to whether Connecticut substantive law, as expressed in Cleveland v. U.S. Printing Ink, Inc., ra, 218 Conn. at 181, 588 A.2d 194, should apply in this case based solely upon the fact that the subject accident occurred in Connecticut.

” (Emphasis added.) This reply further argued that the factors listed in Jaiguay would determine the proper choice of law analysis. These factors, taken from the Restatement (Second) of Conflict of Laws, then were discussed. The plaintiff expressly stated that to apply the test of Jaiguay, further argument was necessary. These arguments were restated in the plaintiff's reply brief in support of his motion for discovery, also dated June 23, 2008.

“This court routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling.... It is well established that a party who induces an error cannot be heard to later complain about that error.... This principle bars appellate review of induced nonconstitutional and induced constitutional error.... The invited error doctrine rests on the principles of fairness, both to the trial court and to the opposing party.” (Internal quotation marks omitted.)...