DeSantis v. Gaudioso, 57094

• Decision Date: 13 December 1983
• Docket Number: No. 57094,57094
• Citation: 476 A.2d 149,39 Conn.Supp. 222
• Court: Connecticut Superior Court
• Parties: Frederick S. DeSANTIS v. John GAUDIOSO.

Page 149

476 A.2d 149

39 Conn.Supp. 222

Frederick S. DeSANTIS v. John GAUDIOSO.

No. 57094.

Superior Court of Connecticut Judicial District of Waterbury.

Dec. 13, 1983.

Voog, Simmons & Voog, Waterbury, for plaintiff.

Gillooly, McGrail & Carroll, New Haven, for defendant.

Roushon & Hebert, Farmington, for intervening plaintiff, Superior Homes, Inc.

WALSH, Judge.

The plaintiff, Frederick S. DeSantis, was injured while in the course of employment when a ditch in which he was working collapsed. He was compensated for those injuries by his employer, Superior Homes, Inc. (Superior), under the workers' compensation act. The plaintiff now sues the defendant, John Gaudioso, alleging that the ditch collapsed because of the defendant's negligence. Superior has intervened pursuant to General Statutes § 31-293 to recover from the defendant sums paid or which it will become obligated to pay the plaintiff under the workers' compensation act. In his answer to the intervening complaint, the defendant raises the special defense that the plaintiff's injury occurred because of Superior's negligence. Superior moves to strike this special defense contending that comparative negligence cannot be asserted against an intervening employer under General Statutes § 31-293.

The workers' compensation act exists to compensate employees for injuries arising out of and in the course of employment through a guaranteed, fixed schedule recovery system. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); General Statutes § 31-284.

Under General Statutes § 31-293, both the employee and the employer can bring an action at law against a third party who is allegedly responsible for the employee's injuries. Such an action allows the employee to obtain a full common law recovery against the third party who is not subject to the benefits and burdens of the workers' compensation system, while simultaneously allowing the employer, who has been forced to bear the cost of the third party's activity, to be reimbursed. Lambertson v. Cincinnati Corporation, 312 Minn. 114, 121, 257 N.W.2d 679 (1977); see generally annot., 100 A.L.R.3d 350.

The employer's substantive right to reimbursement under § 31-293 is in effect "one of subrogation to the right of the injured employee to recover for the tort committed against him." Stavola v. Palmer, 136 Conn. 670, 677, 73 A.2d 831 (1950). The employer's rights under the statute derive from and depend on the employee's rights; the employer has no cause of action unless the employee would have a cause of action against the third party. Id., 678, 73 A.2d 831. Mickel v. New England Coal & Coke Co., 132 Conn. 671, 678, 47 A.2d 187 (1946). If the employer and employee join as parties plaintiff, any damages recovered shall be first apportioned in order to satisfy the employer's claim for reimbursement; the remainder of the award will then be apportioned to the employee's claim for damages. General Statutes § 31-293. During the trial, "the jury should not be told the amount of the employer's obligation for workers' compensation. The jury returns a verdict for the amount of damages to which they find the employee is entitled, and thereafter the court apportions that to the employer and the employee." Stavola v. Palmer, supra, 679, 73 A.2d 831.

In Perruccio v. Nadeau, 30 Conn.Sup. 126, 131, 304 A.2d 225 (1973), the court held that "the vicarious contributory negligence of the employer is not a valid defense to the employer's action for reimbursement." The court was concerned that the employee might gain a double recovery, which is prohibited, if the defense successfully barred the employer from seeking reimbursement. Contra, Cirrito v. Continental Can Co., 519 F.Supp. 638 (D.Conn.1981) (holding that the employer's negligence could be asserted and used to reduce the amount of the employer's reimbursement by the percentage of the employer's negligence). The Cirrito court reasoned that the policies behind the comparative negligence statute (§ 52-572h) in conjunction with § 31-293 required such a result.

It is submitted that Cirrito represents a more equitable and better reasoned result. If the employer's reimbursement is not reduced to reflect his percentage of negligence, the third party, in effect, "is forced to subsidize a workers' compensation system in a proportion greater than his own fault and at a financial level far in excess of the workers' compensation schedule." Lambertson v. Cincinnati Corporation, supra, 312 Minn. 120, 257 N.W.2d 679.

It is submitted that it is contrary to public policy to allow an employer to commit negligence with absolute impunity by forcing a third party to bear the full cost of a common law judgment, despite the possibly greater fault on the part of the employer. Witt v. Jackson, 57 Cal.2d 57, 72, 366 P.2d 641, 17 Cal.Rptr. 369 (1961); Liberty Mutual Ins. Co. v. Adams, 91 Idaho 151, 156-57, 417 P.2d 417 (1966). "It does not follow ... that a statutory right to intervene is the equivalent of a statutory right to full reimbursement, regardless of fault." Cirrito v. Continental Can Co., supra, 641. The intervening employer's right to intervene does not extinguish any defenses that are available to the third party tortfeasor. "[W]hether an action is brought by the employer or the employee, the third party tortfeasor should be able to invoke the concurrent negligence of the employer to [reduce] its right to reimbursement since, in either event, the action is brought for the benefit of the employer to the extent that compensation benefits have been paid to the employee." Witt v. Jackson, supra, 57 Cal.2d 71, 366 P.2d 641, 17 Cal.Rptr. 369; Cirrito v. Continental Can Co., supra, 641. This result appears to accord with the Connecticut Supreme Court's interpretation of General Statutes § 31-293: "If the right of a compensation payer to recover from a third party tort feasor rests upon principles of subrogation at all, it is upon the theory that he has satisfied an obligation to his employee [that] was primarily the obligation of the tort feasor." Stavola v. Palmer, supra, 136 Conn. 677, 73 A.2d 831. (Emphasis added.)

It is submitted that allowing the third party tortfeasor to assert the intervening employer's negligence as a defense to reduce the employer's reimbursement will not violate Connecticut's prohibition against contribution between joint tortfeasors. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 95, 429 A.2d 808 (1980); Gomeau v. Forrest, 176 Conn. 523, 524-25, 409 A.2d 1006 (1979). While the California courts have interpreted such a defense as an attempt to secure contribution from a joint tortfeasor; Witt v. Jackson, supra, 57 Cal.2d 69-70, 366 P.2d 641, 17 Cal.Rptr. 369; Associated Construction & Engineering Co. v. Workers' Compensation Appeals Board, 22 Cal.3d 829, 841, 587 P.2d 684, 150 Cal.Rptr. 888 (1978); such an interpretation overlooks the technical meanings of both contribution and joint tortfeasor.

"As applied to the law of torts, contribution distributes the amount of damages paid to the plaintiff among the tort-feasors by requiring each to pay his proportionate share." 1 Dooley, Modern Tort Law (Rev.1982), § 26.20; Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). In this case, the defendant tortfeasor does not seek a positive recovery from the employer, but rather a reduction of the employer's...