Barker v. All Roofs by Dominic

• Decision Date: 13 August 2020
• Docket Number: SC 20196
• Citation: 336 Conn. 592,248 A.3d 650
• Court: Connecticut Supreme Court
• Parties: Christopher BARKER v. ALL ROOFS BY DOMINIC et al.

336 Conn. 592

248 A.3d 650

Christopher BARKER

v.ALL ROOFS BY DOMINIC et al.

SC 20196

Supreme Court of Connecticut.

Argued October 22, 2019

Officially released August 13, 2020^**

Joseph J. Passaretti, Jr., Glastonbury, with whom, on the brief, was Amanda A. Hakala, for the appellants (defendant city of Bridgeport et al.).

Lisa Guttenberg Weiss, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (Second Injury Fund).

Robinson, C. J., and Palmer, McDonald, Kahn, Ecker, Vertefeuille and Elgo, Js.^*

ECKER, J.

The sole issue in this certified appeal is whether, under the Workers’ Compensation Act, General Statutes § 31-291,¹ a municipality is the "principal employer" of an employee of an uninsured roofing subcontractor injured while repairing a municipal building. The defendants city of Bridgeport (city) and PMA Insurance Company² contend that the city is not a principal employer under the statute because it is not in the "trade or business" of roof repair. The Second Injury Fund (fund) responds that the city is in the "trade or business" of maintaining and repairing municipal buildings and facilities, and, therefore, the Appellate Court properly affirmed the judgment of the Compensation Review Board (board), which found that the city was liable for the payment of the workers’ compensation benefits of the plaintiff, Christopher Barker, as his principal employer. We agree with the fund and affirm the judgment of the Appellate Court.

The relevant facts and procedural history are not in dispute. In March, 2000, the city hired the defendant All Roofs by Dominic (All Roofs) to do repair work on the roof of the city's transfer facility located at 475 Asylum Street. All Roofs hired the defendant Howard Adams d/b/a Howie's Roofing (Howie's Roofing) as a subcontractor. On June 29, 2000, the plaintiff, an employee of Howie's Roofing, was injured in the course and scope of his employment when he fell from the roof under repair. After his fall, the plaintiff sought workers’ compensation benefits from Howie's Roofing, All Roofs, and the city. Neither Howie's Roofing nor All Roofs carried a valid workers’ compensation insurance policy.

A formal hearing was held before the Workers’ Compensation Commission. On January 5, 2005, the Workers’ Compensation Commissioner for the Fourth District determined that the plaintiff was an employee of Howie's Roofing when he suffered his work-related injury. Because Howie's Roofing was uninsured, that finding required the fund to pay the workers’ compensation benefits owed to the plaintiff pursuant to General Statutes § 31-355.³ The fund subsequently contested liability on the ground that, under § 31-291, the city was the principal employer of the plaintiff and, therefore, was required to pay the workers’ compensation benefits owed to him.

Additional hearings were conducted before the Workers’ Compensation Commission on November 19, 2015, and February 23, 2016, to determine the city's principal employer liability. The city conceded that it had hired All Roofs to perform work on the transfer facility and that the plaintiff's injury took place on municipal property under the city's control. The city denied, however, that the roofing work performed by All Roofs was a part or process in the city's trade or business, which is a prerequisite to establish principal employer liability under § 31-291. John F. Cottell, Jr., Deputy Director of Public Facilities for the city, testified that it was the responsibility of the public facilities department to maintain city-owned buildings, but he also testified that the city did not employ a roofer because the need was not extensive enough to justify the cost of employing one on a full-time basis.

In his written finding and orders, the Workers’ Compensation Commissioner for the Third District (commissioner) determined that, under Massolini v. Driscoll , 114 Conn. 546, 551–52, 159 A. 480 (1932), a municipality can be liable as a principal employer under § 31-291. The commissioner also determined that, pursuant to General Statutes § 7-148,⁴ the city has a statutory duty to manage, maintain, repair, and control its property, including its transfer facility. In addition, the commissioner concluded that the work of repairing the roof of the transfer facility was a part or process in the city's trade or business. The commissioner found that the city was the plaintiff's principal employer and ordered the defendants to pay the workers’ compensation benefits to which the plaintiff was entitled. The defendants filed a motion to correct and a motion for articulation, both of which the commissioner denied.

The defendants appealed to the board, which affirmed the commissioner's decision. The defendants timely appealed from the board's decision to the Appellate Court. The Appellate Court affirmed the decision of the board. Barker v. All Roofs by Dominic , 183 Conn. App. 612, 623, 193 A.3d 693 (2018). We granted the defendants’ petition for certification to appeal, limited to the following issue: "Did the Appellate Court [correctly] conclude that, under ... § 31-291, as construed by Massolini v. Driscoll , [supra, 114 Conn. 546, 159 A. 480 ], the ... city ... was liable for workers’ compensation benefits as the principal employer of a worker hired by an uninsured subcontractor to repair the roof of a building owned by the city?" Barker v. All Roofs by Dominic , 330 Conn. 925, 926, 194 A.3d 292 (2018).

The defendants contend that roof repair is not a part or process in the city's trade or business under § 31-291, as construed by Massolini . Alternatively, the defendants argue that Massolini is no longer good law because (1) it utilizes an outdated definition of "business" under the principal employer statute, and (2) the subsequent creation of the fund has "displaced" Massolini by providing a "logical alternative" to the holding in that case. Lastly, the defendants argue that the imposition of principal employer liability against a municipality violates General Statutes § 31-286a (c).⁵ In response, the fund argues that (1) Massolini remains controlling law, notwithstanding the subsequent creation of the fund, (2) pursuant to § 31-291, as construed by Massolini , the city is liable for the payment of workers’ compensation benefits to the plaintiff as his principal employer, and (3) § 31-286a (c) has no application on this record.

Our standard of review applicable to workers’ compensation appeals is well-settled. "The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board." (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy , 294 Conn. 564, 572, 986 A.2d 1023 (2010). "Our Workers’ Compensation Act indisputably is a remedial statute that should be construed generously to accomplish its purpose." Driscoll v. General Nutrition Corp. , 252 Conn. 215, 220, 752 A.2d 1069 (2000).

The principal employer statute provides in relevant part: "When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. ..." General Statutes § 31-291. The "underlying purpose" of the statute is to impose liability in "those situations [in which injurious] conditions might be assumed to be largely within the control or observation of the principal employer." Wilson v. Largay Brewing Co. , 125 Conn. 109, 112, 3 A.2d 668 (1939). Because "[m]ost compensable injuries are due to conditions of employment the danger from which could be prevented or minimized by sufficient oversight or control"; id. ; the statute provides an incentive for the principal employer to provide a safe working environment for the contractors and subcontractors that carry out any part or process in its trade or business. See Sgueglia v. Milne Construction Co. , 212 Conn. 427, 433, 562 A.2d 505 (1989) ("[t]he purpose of § 31-291 is to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work [in] any part of the business [that] he has undertaken to carry on" (internal quotation marks omitted)); Johnson v. Mortenson , 110 Conn. 221, 225, 147 A. 705 (1929) (principal employer statute "afford[s] full protection to work[ers], by preventing the possibility of defeating the [Workers’ Compensation Act] by hiring irresponsible contractors or subcontractors to carry on a part of the employer's work").

The relevant portion of the principal employer statute has remained unchanged since the enactment of our original Workers’ Compensation Act in 1913. See Public Acts 1913, c. 138, pt. B, § 5. The controlling decisional law is similarly long-standing. Since 1927, we consistently have applied a three-part test to determine principal employer liability under the Workers’ Compensation Act. "To render a principal employer liable, it is clear [that] this statute requires (1) that the relation of principal employer and contractor must exist in work wholly or in part for the former, (2) that the work must be in, on or about premises controlled by the principal employer, and (3) that the work be a...