Dusto v. Rogers Corp.

• Court: Connecticut Court of Appeals
• Writing for the Court: CRADLE, J.
• Citation: Dusto v. Rogers Corp., 222 Conn.App. 71, 304 A.3d 446 (Conn. App. 2023)
• Docket Number: AC 45341
• Decision Date: 24 October 2023
• Parties: Harold DUSTO et al. v. ROGERS CORPORATION et al.

222 Conn.App. 71

304 A.3d 446

Harold DUSTO et al. v. ROGERS CORPORATION et al.

AC 45341

Appellate Court of Connecticut.

Argued March 7, 2023

Officially Released October 24, 2023

Christopher Meisenkothen, New Haven, for the appellant (substitute plaintiff Lana Kelly ).

Melissa M. Malloy, pro hac vice, with whom were Mark J. Hoover, and, on the brief, Judith A. Perritano, for the appellee (named defendant).

Cristin E. Sheehan, with whom was Robert S. Bystrowski, Hartford, for the appellee (defendant Special Electric Corporation, Inc.).

Audrey Perlman Raphael and Amber Long, pro hac vice, filed a brief on behalf of the Connecticut Trial Lawyers Association as amicus curiae.

Dana M. Hrelic, Monte E. Frank, and Meagan A. Cauda, Hartford, filed a brief on behalf of the Connecticut Business and Industry Association and the Insurance Association of Connecticut as amici curiae.

Kelly E. Petter and Linda Feeney filed a brief on behalf of the Connecticut Defense Lawyers Association as amicus curiae.

Prescott, Moll and Cradle, Js. ^*

CRADLE, J.

The plaintiff, Lana Kelly, acting in her capacity as executor of the estates of Harold Dusto and his wife, Anita Dusto, ¹ appeals from the summary judgment rendered in favor of Harold Dusto's employer, Rogers Corporation (Rogers), and the judgment of dismissal rendered in favor of Special Electric Company, Inc. (Special Electric), which sold asbestos materials to Rogers. ² On appeal, the plaintiff claims that the court improperly (1) rendered summary judgment in favor of Rogers on the ground that her claims against Rogers were barred by the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., and (2) dismissed her claims against Special Electric for lack of subject matter jurisdiction. We agree with the plaintiff that a genuine issue of material fact exists as to whether her claims against Rogers satisfied the substantial certainty exception to the exclusivity provision of the act, and we therefore reverse the summary judgment rendered in favor of Rogers. We affirm the dismissal of the plaintiff's claims against Special Electric.

The following procedural history is relevant to the plaintiff's challenges to the judgments on appeal. On June 11, 2019, Harold Dusto and Anita Dusto commenced this action. In the plaintiff's operative complaint, the plaintiff alleged that Dusto was employed by Rogers, an asbestos product manufacturer, at its facility in Manchester from approximately 1970 until 2002, and that, throughout the course of his employment at Rogers, Dusto was exposed to dust and particles of asbestos fibers, from asbestos materials supplied to Rogers by Special Electric, which caused him to develop malignant mesothelioma and eventually die. The plaintiff alleged, inter alia, that the defendants intentionally created a dangerous condition that they knew would make injuries to Rogers’ employees substantially certain to occur.

On September 28, 2021, Rogers filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because the plaintiff's claims against it were precluded by the exclusivity provision of the act. The plaintiff filed a memorandum of law in opposition to Rogers’ motion, arguing that a genuine issue of material fact existed as to whether the plaintiff's claims satisfied the substantial certainty exception to the exclusivity provision of the act. On December 30, 2021, the court filed a memorandum of decision wherein it concluded that, after the burden shifted to the plaintiff, she failed to demonstrate the existence of a genuine issue of material fact that she had satisfied the substantial certainty exception and, consequently, that the plaintiff's claims against Rogers were barred by the exclusivity provision of the act. Accordingly, the court granted Rogers’ motion for summary judgment. On January 18, 2022, the plaintiff filed a motion for reargument and/or reconsideration of the court's decision on Rogers’ motion for summary judgment on the grounds that the court "plainly misapplied the ‘substantial certainty’ legal standard here at the summary judgment stage, misapprehended key facts, and impermissibly invaded the province of the jury in weighing evidence and drawing its own inferences from the evidence." On February 9, 2022, the court denied the plaintiff's motion, issuing the following order: "Although the court's decision incorrectly indicates that there was only evidence presented of one [Occupational Safety and Health Administration (OSHA)] citation (as opposed to one OSHA violation), the court's decision is the same ...."

On October 26, 2021, Special Electric filed a motion to dismiss the plaintiff's claims against it on the ground that the court did not have subject matter jurisdiction over it because it is a dissolved corporation and the plaintiff's claims were time barred because they were not brought within the statutory time frame for asserting claims against a dissolved corporation pursuant to Wisconsin law. ³ On November 3, 2021, the plaintiff filed an objection to the motion to dismiss. On February 18, 2022, the court filed a memorandum of decision wherein it granted Special Electric's motion to dismiss on the ground that the court lacked subject matter jurisdiction over the plaintiff's claim against Special Electric because the claim was not filed within the two year period during which all claims against a dissolved corporation must be brought pursuant to Wisconsin law. The plaintiff's appeal from the granting of summary judgment to Rogers and the dismissal of her claims against Special Electric followed.

We address the plaintiff's challenge to the judgment with respect to each motion in turn.

I

The plaintiff first claims that the court erred in concluding that, after the burden shifted to her, she failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether she satisfied the substantial certainty exception to the exclusivity provision of the act. We agree.

This court recently has recounted the following relevant history of the development of the substantial certainty exception. "[T]he exclusive remedy provision of our workers’ compensation scheme, [General Statutes] § 31-284 (a) ... provides in relevant part: An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment .... Our Supreme Court consistently has interpreted the exclusivity provision of the act ... as a total bar to [common-law] actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. Suarez v. Dickmont Plastics Corp ., 229 Conn. 99, 106, 639 A.2d 507 (1994) ( Suarez I ).

"The exclusivity provision represents a balancing of interest, insofar as the purpose of the act is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. ... The act is to be broadly construed to effectuate the purpose of providing compensation for an injury arising out of and in the course of the employment regardless of fault. ... Under typical workers’ compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee's burden of proof is relatively light, and recovery should be expeditious. In a word, these statutes compromise an employee's right to a [common-law] tort action for [work-related] injuries in return for relatively quick and certain compensation. ... Lucenti v. Laviero , [327 Conn. 764, 774, 176 A.3d 1 (2018)] ; Mingachos v. CBS, Inc ., 196 Conn. 91, 106, 491 A.2d 368 (1985) (same). A damage suit as an alternative or additional source of compensation, becomes permissible only by carving a judicial exception in an uncarved statute. ... Neither moral aversion to the employer's act nor the shiny prospect of a large damage verdict justifies interference with what is essentially a policy choice of the [l]egislature. ... Id. The principle of exclusivity is not eroded, [however] ... when the plaintiff alleges an intentional tort, in which case an employee is permitted to pursue remedies beyond those contemplated by the act. Suarez [v. Dickmont Plastics Corp .], supra, 229 Conn. [at] 115 [639 A.2d 507].

"Our Supreme Court first recognized the narrow intentional tort exception to the act's exclusivity in Jett v. Dunlap , 179 Conn. 215, 425 A.2d 1263 (1979). In Jett , the court exempted from the exclusivity provision of the act an employer's tortious act of intentionally directing or authorizing another employee to assault the injured party. Id., [at] 218–19 . In Mingachos v. CBS, Inc ., supra, 196 Conn. [at] 100–101 [491 A.2d 368], the court declined to extend [the] intentional tort exception to [the] act's exclusivity provision to situations in which an injury resulted from the employer's intentional, wilful, or reckless violations of safety standards as established pursuant to federal or state laws. Lucenti v. Laviero , supra, 327 Conn. [at] 775 [176 A.3d 1]. To bypass the exclusivity of the act, the intentional or deliberate ... conduct alleged must have been designed to cause the injury that resulted. Mingachos v. CBS, Inc ., supra, 196 Conn. [at] 102 [491 A.2d 368]. [T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. ... Id., [at] 103 . Reckless misconduct differs from intentional misconduct, and an employee must establish that the employer knew that injury was substantially certain to follow its deliberate course of action. Id.

"Our Supreme Court elaborated on the contours of this...