Barrette v. Travelers Ins. Co.

• Decision Date: 10 July 1968
• Docket Number: No. 153665,153665
• Citation: 246 A.2d 102,28 Conn.Supp. 1
• Court: Connecticut Superior Court
• Parties: Sinai BARRETTE v. The TRAVELERS INSURANCE COMPANY et al.

Page 102

246 A.2d 102

28 Conn.Supp. 1

Sinai BARRETTE v. The TRAVELERS INSURANCE COMPANY et al.

No. 153665.

Superior Court of Connecticut, Hartford County.

July 10, 1968.

Michelson & Kane, Hartford, for plaintiff Barrette.

Pomeranz & Chernoff, Hartford, for Two Rivers Dyeing Co., intervening plaintiff.

Courtney, Mansfield, Sullivan & Ripley, Hartford, for named defendant.

Rogin, Nassau, Caplan & Lassman, Hartford, for defendant Greater New York Mut. Ins. Co.

GRILLO, Judge.

The issue via demurrer raised by this litigation is one of initial impression in the state courts of Connecticut and raises the question: Can an employee injured in the course of his employment institute a common-law action in negligence against the workmen's compensation insurance carrier of his employer? ¹

These procedings are instituted by Sinai Barrette, who was injured on November 8, 1966, at the Two Rivers Dyeing Company in Danielson, Connecticut, in an accident arising in the course of and out of his employment. Succinctly stated, the suit charges negligence in the failure of the defendants to inspect allegedly dangerous machinery, a failure to warn the plaintiff of the danger, and neglect to provide devices to negate the danger. In effect, the negligence averred encapsulates the claim that the defendants' nonfeasance resulted in the employee's working in an unsafe place.

This action is brought pursuant to the the third-party liability provision of the Workmen's Compensation Act of Connecticut, which allows an injured employee to accept workmen's compensation benefits and also to proceed against a third person who caused the injury. ² The defendant Greater New York Mutual Insurance Company is the workmen's compensation insurance carrier for the employer company and has paid compensation benefits to the plaintiff. Another defendant is the Travelers Insurance Company, liability insurer of the employer company, whose status insofar as this plaintiff is concerned will be referred to hereinafter.

Briefly stated, the plaintiff contends that while the statute-s 31-284(a) ³-insulates the employer from common-law liability, the legislature, in specifically protecting the employer only, failed to shield the employer's compensation insurer, thus rendering the latter subject to the instant action for its negligent nonfeasance.

It is accepted Connecticut law that, as between all persons in mutual relationship of employer and employee who have accepted the provisions of the Workmen's Compensation Act, the right to obtain, and the liability to pay, compensation under the act are substituted for the common-law rights and liabilities otherwise existing between them, to the exclusion of the latter. Buytkas v. Second National Bank, 127 Conn. 316, 319, 16 A.2d 579. In determining the meaning of a particular section of an act, it is always necessary, however, to take a broad general view of the act. The provisions of the legislation are to be read and construed together. Lake Garda Co. v. LeWitt, 126 Conn. 588, 592, 13 A.2d 510; Town of West Hartford v. Thomas D. Faulkner Co., 126 Conn. 206, 211, 10 A.2d 592.

A key opening the door throwing light upon the present inquiry is found in the following provisions of the Workmen's Compensation Act. Section 31-340 of the act provides in part: 'Every such policy shall contain an agreement by the insurer to the effect that the insurer shall be directly and primarily liable to the employee and, in the event of his death, to his dependents * * * to pay to him or to them the compensation, if any, for which the employer is liable; but payment in whole or in part of such compensation by either the employer or the insurer shall to the extent thereof of be a bar to the recovery against the other of the amount so paid.' Furthermore, § 31-342 provides: '(T)he (compensation) commissioner having jurisdiction may make his award directly against such employer, insurer or both, except that, when there is doubt as to the respective liability of two or more insurers, he shall make his award directly against such insurers; and such awards shall be enforceable against the insurer in all respects as provided by law for enforcing awards against an employer, and the proceedings on hearing, finding, award, appeal and execution shall be in all respects similar to that provided by law as between employer and employee.' And § 31-287 provides: 'No policy of insurance against liability under this chapter, except as provided in section 31-284, shall be made unless the same covers the entire liability of the employer thereunder and contains an agreement by the insurer that, as between the employee and the insurer, notice or knowledge of the occurrence of injury by the insured shall be deemed notice or knowledge by the insurer, that jurisdiction of the insured for the purposes of this chapter shall be jurisdiction of the insurer and the insurer shall in all things be bound by and subject to the findings, awards and judgments rendered against such insured; and also that, if the insured becomes insolvent or is discharged in bankruptcy during the period that the policy is in operation, or the compensation, or any part of it, is due and unpaid or if an execution upon a judgment for compensation is returned unsatisfied, an injured employee or other person entitled to compensation under the provisions of this chapter may enforce his claim to compensation against the insurer to the same extent that the insured could have enforced his claim against such insurer had he paid compensation.'

These provisions of this legislation, considered in conjunction with others cited in the footnote hereto, ⁴ evince the clear-cut intention of the legislature to create an inseparable identity between the employer and his insurer insofar as compensation and medical benefits for the injured employee are concerned. In that regard the status of the insurer is that of the employer once the employer-employee relationship comes into existence. There appears, as a result, the blending of the jural personalities of the employer and his insurer and a conclusive indication that the legislature did not intend to differentiate between the employer and the insurer so far as obligations relative to compensation benefits are concerned. Cf. Connecticut State Board of Labor Relations v. Greenwich Taxi Co., 151 Conn. 573, 577, 200 A.2d 712. The imposing of these duties upon the insurer by this merger of identities carries with it the corresponding right of the insurer to be accorded a right similar to that of the employer, i.e., immunity from a common-law negligence action. Kotarski v. Aetna Casualty & Surety Co., D.C., 244 F.Supp. 547, 555, aff'd, 6 Cir., 372 F.2d 95.

The duties allegedly violated in this action obviously are those required of an employer-providing a safe place to work. Wells v. New York, N.H. & H.R. Co., 102 Conn. 361, 363, 128 A. 700. What is the proper rule to apply when an insurer commits an act of negligence in carrying out activities which an employer has no duty to perform need not now be decided. Donohue v. Maryland Casualty Co., D.C., 248 F.Supp. 588, 591-592. Our statutes and rules of procedure permit the insurer to bring an action either alone or by way of intervention against the third-party wrongdoer to recover compensation it has paid. General Statutes § 31-293; Practice Book § 147; Haslam v. Trailways of New England, Inc., D.C., 59 F.Supp. 441, 443. To permit this action would result in the ludicrously incongruous situation of an insurance carrier suing itself when it has paid compensation.

Another compelling reason suggests itself as to why the Connecticut Workmen's Compensation Act must be construed to preclude an action in negligence against the insurer which has paid compensation to the would-be plai...