Parsons v. United Technologies Corp., Sikorsky Aircraft Div.

• Decision Date: 02 September 1997
• Docket Number: No. 15570,15570
• Citation: 700 A.2d 655,243 Conn. 66
• Court: Connecticut Supreme Court
• Parties: , 135 Lab.Cas. P 58,388, 13 IER Cases 462 Gary F. PARSONS, et al. v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION, et al.

Page 655

700 A.2d 655

243 Conn. 66, 135 Lab.Cas. P 58,388,

13 IER Cases 462

Gary F. PARSONS, et al. v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION, et al.

No. 15570.

Supreme Court of Connecticut.

Argued Feb. 18, 1997.

Decided Sept. 2, 1997.

John R. Logan, with whom was Joel D. Perlotto, Torrigton, for appellant (named plaintiff).

Edward J. Dempsey, Hartford, for appellees (defendants).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Associate Justice.

The issue in this appeal is whether the named plaintiff, Gary F. Parsons, ¹ a former at-will employee of the named defendant Sikorsky Aircraft Division of United Technologies Corporation, ² sufficiently alleged a cause of action against the defendant for wrongful discharge, intentional infliction of emotional distress, or negligent infliction of emotional distress based on the defendant's termination of the plaintiff's employment. The trial court, Levin, J., granted the defendant's motion to strike each of these counts, which constituted the entirety of the plaintiff's complaint, and rendered judgment for the defendant. ³ This appeal followed. ⁴

On appeal, the plaintiff claims that the trial court acted improperly in striking each of the three claims of his complaint. We reverse the trial court's judgment striking count one, and we affirm the judgment striking counts two and three of the complaint.

"In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988)." Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). A motion to strike admits all facts well pleaded. See Practice Book § 152. A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).

We assume as true the following facts as alleged in the plaintiff's seventh revised amended complaint. The defendant is a corporation engaged in the business of manufacturing, distributing and servicing helicopters and other related products. The plaintiff had been employed by the defendant, on an at-will basis, as an instructor of aircraft maintenance since August 29, 1986, during which time he had been a member of a project team that had built a nonmilitary helicopter for the Crown Prince of Bahrain. ⁵ On September 11, 1990, the plaintiff's supervisor assigned the plaintiff to instruct several members of a Bahrain helicopter crew regarding the proper repair and maintenance of the helicopter. On September 12, 1990, the plaintiff was informed that he would have to provide this training at the "Headquarters, Bahrain Defense Force," beginning September 20, 1990. The plaintiff alleged further that this assignment would require him to "sleep and eat" and "resid[e]" at the Bahrain military base.

The plaintiff also alleged that at this time the United States of America and certain allied nations, including Bahrain, were involved in a joint military action, known as Operation Desert Shield, taken in response to the Iraqi invasion of Kuwait. The military installation to which the plaintiff was to be sent was serving as the main staging area for the allied warplanes that were based on Bahrain. On September 13, 1990, the plaintiff became aware of a travel advisory issued by the United States Department of State (State Department), which was in force throughout the relevant period and provided in part: "Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advise[s] all Americans to defer all non-essential travel to ... Bahrain...." ⁶

On September 18, 1990, the plaintiff informed the defendant by written memo that he refused to travel to Bahrain because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally. Within two hours of the plaintiff's refusal, the defendant terminated the plaintiff's employment and removed him from the building under security escort.

I

The plaintiff first claims that the trial court improperly struck the first count of his seventh revised amended complaint, which asserted a wrongful termination claim. Although conceding that he was an at-will employee, the plaintiff argues that his discharge for refusal to travel to Bahrain violated Connecticut public policy requiring an employer to provide its employees with a reasonably safe place to work, as demonstrated by several state statutes regulating workplace safety. ⁷ The trial court granted the defendant's motion to strike this claim on independent procedural and substantive grounds. We disagree both with the trial court's procedural analysis and with its conclusion that the plaintiff failed to state a legally sufficient claim for wrongful termination.

A

The first ground upon which the trial court struck the plaintiff's wrongful termination count was procedural. The court concluded that the plaintiff's wrongful termination claim in his seventh revised complaint was substantially the same as the wrongful termination claim that the plaintiff had previously made in his fifth revised complaint. Because that prior count had itself been stricken for failure to state a legally sufficient claim, and because the plaintiff had not appealed from the merits of that decision but had instead opted to replead, the court concluded that the same claim in his seventh revised complaint should be stricken as well.

The following additional procedural history is relevant to the resolution of this issue. The plaintiff's complaint has undergone many revisions during the life of this case. The fifth revised amended complaint was filed on September 16, 1993. The factual allegations underlying the wrongful termination count therein were almost identical to the factual allegations made in the seventh revised amended complaint, as set forth previously in this opinion. The sole difference between the two revisions is that, whereas the seventh revision of the complaint specifies that the plaintiff was to be sent to "Headquarters, Bahrain Defense Force," a staging ground for allied warplanes during Operation Desert Shield, the fifth revision of the complaint merely stated that the plaintiff was to be sent to Bahrain. ⁸ Thus, in the fifth revised amended complaint, the plaintiff's allegation was that the entire country of Bahrain was an unsafe workplace on account of the escalating Persian Gulf conflict, which had the effect of rendering the whole region generally perilous.

The trial court, Ford, J., granted the defendant's motion to strike the wrongful termination count from the plaintiff's fifth revised complaint. The court held that, even assuming that Connecticut does recognize a public policy that requires employers to provide employees with a reasonably safe workplace, such a policy would only cover situations where employers had "possession or control over a definable 'workplace' or 'place of employment'.... Expanding the definition of work place or place of employment to include a whole country [would be] beyond" the scope of the policy. The court concluded that, because the plaintiff had not "allege[d] that [the defendant] owned, operated, or managed a 'workplace' or 'place of employment' in Bahrain," but rather had "allege[d] that all of Bahrain, as a sovereign and autonomous nation, was unsafe at the time of his proposed work assignment," the plaintiff's claim was legally insufficient.

The plaintiff subsequently filed notice, pursuant to then Practice Book § 4002, ⁹ reserving an appeal with respect to the granting of this motion to strike. Rather than proceeding with the remaining count of his complaint, ¹⁰ however, the plaintiff filed yet another revision of his complaint in which, despite his reservation, he repleaded his wrongful termination claim, adding the allegations regarding the specific location in Bahrain to which he was to have been sent.

In response to the seventh revised amended complaint, ¹¹ the defendant filed a motion to strike the plaintiff's wrongful termination claim, based in part on its contention that the plaintiff's revised claim was substantively identical to the claim that had already been stricken by Judge Ford. Judge Levin agreed with this contention and granted the defendant's motion. We conclude, however, that the plaintiff's wrongful termination claim should not have been stricken on this ground.

As a general rule, "[t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading." (Internal quotation marks omitted.) P & L Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994); see also Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Good Humor Corp. v. Ricciuti, 160 Conn. 133, 135, 273 A.2d 886 (1971). Therefore, by opting to replead his wrongful termination claim after it was struck from his fifth amended complaint, rather than pursuing his reserved appeal, the plaintiff abandoned his right to claim that the specific allegations in the fifth amended complaint were, in fact, sufficient to support a wrongful termination claim. Accordingly, if the allegations in the plaintiff's seventh amended complaint were not materially different than those in his fifth amended complaint, the plaintiff could not now appeal from the merits of ...