Gurliacci v. Mayer, Nos. 13961

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; BORDEN; Thereafter, Stamford moved to strike the third count of the plaintiff's amended complaint alleging liability of Stamford based on the negligence of its agent and servant Mayer, and to strike the sixth count alleging liability o
• Citation: 218 Conn. 531,590 A.2d 914
• Parties: Debra A. GURLIACCI et al. v. George MAYER et al. to 13962, 13963
• Docket Number: Nos. 13961
• Decision Date: 07 May 1991

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590 A.2d 914 218 Conn. 531 Debra A. GURLIACCI et al.
v.
George MAYER et al. Nos. 13961 to 13962, 13963 Supreme Court of Connecticut. Argued Dec. 11, 1990.
Decided May 7, 1991.

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[218 Conn. 533] Frank W. Murphy, Norwalk, for appellant in Docket No. 13963 (intervening plaintiff).

Kenneth B. Povodator, Asst. Corp. Counsel, Fairfield, with whom, on the brief, was Mary E. Sommer, Corp. Counsel, Stamford, for appellant-appellee in Docket No. 13961 (named defendant).

Richard S. Scalo, with whom were Ronald D. Japha and, on the brief, Abraham I. Gordon, Bridgeport, for appellants[218 Conn. 534] in Docket No. 13962, appellees-appellants in Docket No. 13961 and appellees in Docket No. 13963 (named plaintiff et al.).

Before [218 Conn. 531] PETERS, C.J., and GLASS, COVELLO, HULL and BORDEN, JJ.

[218 Conn. 534] BORDEN, Associate Justice.

This consolidated appeal arises out of an alleged automobile accident between the named plaintiff, Debra A. Gurliacci, ¹ and the named defendant, George Mayer. ² The plaintiff, a Stamford police officer, claimed that while on patrol in February, 1983, she suffered injuries to her back when Mayer, then the deputy chief of the Stamford police department, struck the rear of her unmarked police car as he was driving while intoxicated. Due to her injuries, the plaintiff was unable to continue working as a police officer, but continued to collect her full salary. The jury found in favor of the plaintiff and awarded her $485,000. The city of Stamford, which had intervened in the suit as a plaintiff pursuant to General Statutes § 31-293(a), ³ sought [218 Conn. 535] to recover from the jury award, inter alia, two thirds

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of the amount that it had paid to the plaintiff as salary following her injury, asserting that such percentage represented workers' compensation payments. The trial court determined, however, that the salary was paid pursuant to a collective bargaining agreement that [218 Conn. 536] provided for unlimited sick leave in the place of workers' compensation. Mayer and Stamford appealed from the judgment of the trial court, and the plaintiff and Louis A. Gurliacci cross appealed. ⁴ We transferred the appeals from the Appellate Court to ourselves pursuant to Practice Book § 4023. We reverse, and order a new trial.

The relevant portions of the complex procedural history of this consolidated appeal are as follows. On February 2, 1983, the alleged accident between the plaintiff and Mayer occurred. On February 1, 1985, one day before the statute of limitations on the action passed, the plaintiff served her first complaint against Mayer and Stamford. On April 2, 1985, Mayer and Stamford moved to dismiss the action for lack of subject matter jurisdiction based on the fellow employee immunity provision of General Statutes (Rev. to 1983) § 7-465. ⁵ On May 10, 1985, the plaintiff requested permission[218 Conn. 537] of the court to amend her

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complaint. The plaintiff's request was granted over Mayer's objection. On May 30, 1985, the court, McGrath, J., denied the motion to dismiss for lack of subject matter jurisdiction.

Thereafter, Stamford moved to strike the third count of the plaintiff's amended complaint alleging liability [218 Conn. 538] of Stamford based on the negligence of its agent and servant Mayer, and to strike the sixth count alleging liability of Stamford to Louis Gurliacci for loss of consortium. The court, McGrath, J., granted the motion to strike, thereby eliminating Stamford as a defendant.

Mayer moved for summary judgment on the fourth and fifth counts of the plaintiff's complaint, relating to Louis Gurliacci's claim against Mayer for loss of consortium. The court, Cioffi, J., granted the motion for summary judgment.

Mayer then moved to amend his special defenses to include a claim that the plaintiff's amended complaint was barred by the statute of limitations, General Statutes § 52-584. ⁶ The court, Lewis, J., allowed the amendment over the plaintiff's objection. Mayer then moved for summary judgment on the first two counts of the plaintiff's complaint, claiming that they were barred by fellow employee immunity and exclusivity of remedy provided by the Workers' Compensation Act. The court, Lewis, J., denied the motion for summary judgment, and thereafter granted the plaintiff's motion to strike Mayer's special defense relating to the expiration of the statute of limitations.

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On March 21, 1989, Stamford filed a motion to intervene as a plaintiff pursuant to General Statutes § 31-293(a), claiming that it was not barred by the [218 Conn. 539] statutory thirty-day requirement for intervention because the plaintiff had never served it with statutory notice. The court, Cioffi, J., granted the motion to intervene. The plaintiff thereafter moved to dismiss Stamford's intervening complaint, and the court denied the motion.

Eventually, the case proceeded to trial. The court, Lewis, J., bifurcated the proceedings, with the issues of liability and damages and the issue of the exclusivity of the Workers' Compensation Act tried separately. The jury determined that Mayer was negligent and awarded damages to the plaintiff in the sum of $485,000. The court denied Mayer's motion to set aside the verdict. Thereafter, Stamford moved for apportionment of damages, and the court granted the motion in part.

The jury could reasonably have found the following facts. On February 2, 1983, at approximately 1:30 a.m., the plaintiff, a Stamford police officer, was on patrol in an unmarked police car. As she was driving south on Glenbrook Road, the plaintiff noticed that the car behind her was driving very close to her, flashing its high beams, and then retreating. After this had occurred numerous times, she made a left turn onto Ely Place in order to allow the car to pass and to determine why the car was following her. The other car likewise turned onto Ely Place, and hit the rear of the plaintiff's car causing her to be thrown around the inside of her car.

The plaintiff exited her car and approached the other car. At that time, she learned that the other driver was Mayer, the deputy chief of police of Stamford, who was also driving an unmarked police car. Mayer was intoxicated and abusive, having consumed four to six scotches with water in the preceding four to six hours. [218 Conn. 540] Mayer claimed that he had been engaged in surveillance of an organized crime figure driving a gold Cadillac, and that he was trying to locate the Cadillac when the accident occurred.

The plaintiff summoned other officers to the scene. Those officers filed reports describing Mayer as intoxicated and abusive to the plaintiff and to them. At that time, the plaintiff reported no injuries, and finished her shift.

The next day, the plaintiff was sore and suffering from a stiff neck and pain in her shoulder blades. Upon arriving at work, she reported her injuries to the police department and went to Stamford Hospital for medical attention. Also at that time, the plaintiff examined the rear bumper of her car and noticed slight damage, which she reported to the police department.

The plaintiff intermittently missed work for one and one-half years as a result of neck and back pain. The jury also could have found that the plaintiff has been totally incapacitated from working as a police officer since July, 1984. From 1983 to 1986, the plaintiff was under the care of numerous doctors for treatment of her neck and back injuries. Since the accident, the plaintiff has been admitted to Stamford Hospital and St. Raphael's Hospital, and has undergone extensive medical treatment and surgery for a herniated disk. She is presently suffering from a disability of her back, and, according to medical testimony, may never return to police work.

I

MAYER'S APPEAL

On his appeal, Mayer claims that the court improperly: (1) refused to allow evidence of the plaintiff's continued receipt of full pay as evidence of malingering; [218 Conn. 541] (2) charged the jury that fellow employee immunity under General Statutes § 7-465 required a separate element of "capability"; (3) struck his special defense based upon the statute of limitations; General Statutes § 52-584; (4) denied his motion to dismiss based upon lack of subject matter jurisdiction; ⁷ and (5) refused to allow follow-up

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questions to a witness after questioning by the jurors. Because we agree with Mayer as to his first and second claims as stated above, a new trial is required. A

We first consider Mayer's claim that the court improperly denied his motion to dismiss the plaintiff's original complaint for lack of subject matter jurisdiction. This claim raises the issue of whether a motion to dismiss is the correct procedural vehicle with which to challenge a complaint that, on its face, alleges a cause of action falling under the fellow employee immunity rule. General Statutes (Rev. to 1983) § 7-465 ⁸ provides that "if the employee ... has a right to benefits or compensation under chapter 568 [the Workers' Compensation[218 Conn. 542] Act] by reason of such injury ... caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such employee ... shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious." (Emphasis added.) The plaintiff's original complaint, dated February 2, 1985, alleged only that Mayer "was operating an automobile owned by the defendant, the city of Stamford," and that, at all times relevant, Mayer "was the servant, agent and/or employee of the City of Stamford." A reasonable reading of that complaint discloses no allegations asserting that Mayer had been acting either outside the scope of his employment or wilfully or maliciously.

Mayer claims that the language of § 7-465 deprived the trial court of subject matter jurisdiction...