Fulco v. Norwich Roman Catholic Diocesan Corp.

• Decision Date: 16 June 1992
• Docket Number: No. 10664,10664
• Court: Connecticut Court of Appeals
• Parties: , 30 Wage & Hour Cas. (BNA) 1778, 7 IER Cases 1344 Dominic FULCO v. The NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION.

Page 1034

609 A.2d 1034

27 Conn.App. 800, 30 Wage & Hour Cas. (BNA) 1778,

7 IER Cases 1344

Dominic FULCO v. The NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION.

No. 10664.

Appellate Court of Connecticut.

Argued April 1, 1992.

Decided June 16, 1992.

Dominic Fulco III, Hartford, for appellant (plaintiff).

Joseph T. Sweeney, and James M. Sconzo, Hartford, for appellee (defendant).

Before DUPONT, C.J., and NORCOTT and HEIMAN, JJ.

HEIMAN, Judge.

The plaintiff appeals from the trial court's judgment in favor of the defendant on the second, fourth, sixth and seventh counts of the complaint. The trial court rendered its judgment after granting the defendant's motion to strike these counts and their corresponding prayers for relief. See Practice Book § 152(1).

The plaintiff claims that the trial court improperly (1) refused to apply retrospectively Public Acts 1990, No. 90-55, amending General Statutes § 31-72, (2) found that he had not stated a cause of action under General Statutes § 31-72 as it existed before its amendment by Public Acts 1990, No. 90-55, (3) determined that he had not alleged sufficient facts to invoke the "employer policy" clause of General Statutes § 31-76k, and (4) found that his claim based on the defendant's alleged negligent infliction of emotional distress was barred by General Statutes § 31-284(a), the exclusivity provision of the Workers' Compensation Act. We reverse only the part of the trial court's judgment in favor of the defendant on the plaintiff's claim for the negligent infliction of emotional distress, and affirm the balance of the judgment.

The plaintiff alleged the following facts in his complaint. ¹ The defendant hired the plaintiff to serve as its director of finance in 1985 and agreed, among other things, to allow him twenty paid vacation days per year. The defendant discharged the plaintiff from employment effective June 23, 1989. As of that date, the plaintiff had used only twenty-six of the 100 vacation days he had earned. The defendant, however, has paid the plaintiff only for twenty vacation days, and owes him the cash value of the remaining fifty-four vacation days.

The plaintiff commenced this lawsuit by filing an eight count complaint. The first count alleged a breach of the parties' contract. The third count alleged unjust enrichment. The fifth count sought recovery based on quantum meruit. The second, fourth and sixth counts, respectively, alleged an entitlement to double damages pursuant to General Statutes § 31-72 based on the facts set forth in the first, third and fifth counts respectively. The seventh and eighth counts alleged, respectively, the negligent and intentional infliction of emotional distress. The defendant filed a motion to strike the second, fourth and sixth counts, which sought double damages, as well as the seventh count, which sought recovery for the negligent infliction of emotional distress. The trial court granted the motion to strike and rendered judgment in favor of the defendant on the second, fourth, sixth and seventh counts of the complaint. This appeal followed.

I

The plaintiff asserts that the trial court improperly determined that No. 90-55 of the 1990 Public Acts, an amendment to General Statutes § 31-72, does not apply retrospectively. He further argues that even if the amendment does not apply retrospectively, the trial court improperly determined that he had not alleged sufficient facts to entitle him to double damages under General Statutes § 31-72. We disagree with both claims.

On June 23, 1989, the effective date of the plaintiff's discharge, General Statutes (Rev. to 1989) § 31-72 provided in pertinent part: "When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i ... such employee ... may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court...." (Emphasis added.) Public Acts 1990, No. 90-55, which took effect on July 1, 1990, amended § 31-72 by providing for double damages "[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i ... or fails to compensate an employee in accordance with section 31-76k...." (Emphasis added.) General Statutes § 31-76k provides that an employer shall pay an employee accrued fringe benefits, including vacation pay, upon the employee's discharge.

General Statutes § 55-3 provides that "[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect." " 'The "obligations" referred to in the statute are those of substantive law'; Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979); and '[l]egislation which limits or increases statutory liability has generally been held to be substantive in nature.' Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). '[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.' Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989); Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987). 'The legislature only rebuts this presumption when it "clearly and unequivocally" expresses its intent that the legislation shall apply retrospectively.' Darak v. Darak, supra, 210 Conn. at 468, 556 A.2d 145; see also State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986)." Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990).

The plaintiff argues that Public Act No. 90-55 applies retrospectively because it does not create a substantive right, but merely clarifies the legislature's intent that the term "wages" in § 31-72 be construed to include vacation pay. In support, he relies exclusively on the legislative history of Public Act No. 90-55.

"The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991). Under such circumstances, we will look no further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989)." Koskoff v. Haddam Planning & Zoning Commission, 27 Conn.App. 443, 456, 607 A.2d 1146 (1992) (Heiman, J., dissenting). General Statutes § 31-71a(3) defines "wages" for the purposes of § 31-72 as "compensation for labor or services rendered by an employee...." Thus, the definition of wages is limited to remuneration for labor or services rendered, and does not include vacation pay, which is compensation for loss of wages. See McGowan v. Administrator, 153 Conn. 691, 693, 220 A.2d 284 (1966); Conon v. Administrator, 142 Conn. 236, 245, 113 A.2d 354 (1955); Kelly v. Administrator, 136 Conn. 482, 487, 72 A.2d 54 (1950).

Further, it is significant that the legislature chose not to amend the statutory definition of "wages" set forth in § 31-71a(3). Instead, it altered the text of § 31-72, which delineates the breadth of statutory liability, by authorizing double damages when an employer fails to pay an employee wages "or fails to compensate an employee in accordance with section 31-76k...." (Emphasis added.) The use of the disjunctive "or" clearly indicates that compensation in accordance with § 31-76k is distinct from wages. See State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963).

The plain language of § 31-72 and Public Act No. 90-55 clearly indicates that the term "wages" in § 31-72 does not include vacation pay. Thus, Public Act No. 90-55, which authorizes double damages for the nonpayment of vacation pay in addition to double damages for the nonpayment of wages, creates new substantive rights and corresponding liabilities. Because nothing in the language of the Public Act suggests a clear legislative intent that it be applied retrospectively, the trial court properly refused to apply it to the facts of this case. See Darak v. Darak, supra; Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979).

The plaintiff next claims that, even if Public Act No. 90-55 does not apply retrospectively, the trial court improperly granted the defendant's motion to strike because the term "wages," contained in § 31-72 prior to the amendment, is broad enough to include vacation pay. Because we have concluded that vacation pay is distinct from wages for the purposes of § 31-72, the plaintiff cannot prevail on this claim.

II

The plaintiff next claims that the trial court improperly found that he had not alleged sufficient facts to invoke General Statutes § 31-76k itself, without regard to the incorporation of that statute into General Statutes § 31-72 by Public Act No. 90-55. We disagree.

General Statutes § 31-76k provides for the collection of certain fringe benefits, including paid vacations where (1) an employer policy provides for the payment of accrued benefits upon termination or (2) such payments are provided for by a collective bargaining agreement. The plaintiff argues that he has pleaded sufficient facts to allege the existence of an employer policy that provides for the payment of accrued vacation pay upon an employee's discharge. He specifically contends that his allegations that (1) an employment agreement existed between the defendant and him, (2) he was not required to work any specific period of time before becoming entitled to twenty paid vacation days, and (3) the defendant compensated him for twenty vacation days after it discharged him are sufficient to allege the existence of an employer policy under General Statutes § 31-76k.

To analyze this claim, we must determine the scope of the statutory term "employer policy." "Where [as here] a statute does not define a term, it is appropriate to look to the common...