Rana v. Ritacco

• Decision Date: 19 March 1996
• Docket Number: No. 15214,15214
• Citation: 672 A.2d 946,236 Conn. 330
• Court: Connecticut Supreme Court
• Parties: Barbara L. RANA v. Frank RITACCO.

Page 946

672 A.2d 946

236 Conn. 330

Barbara L. RANA v. Frank RITACCO.

No. 15214.

Supreme Court of Connecticut.

Argued Jan. 11, 1996.

Decided March 19, 1996.

Dennis A. Ferdon, Norwich, with whom were Christopher P. Anderson, Mystic, and, on the brief, Kerin M. Woods, Norwich, for appellant (plaintiff).

James L. Sullivan, Fairfield, for appellee (Whittaker Corporation).

Steven D. Ecker, New Haven, and Joram Hirsch, Bridgeport, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Before PETERS, C.J., and BORDEN, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The dispositive issue in this certified appeal is whether the plaintiff's notice to her employer, Whittaker Corporation (Whittaker), of a third party action complied with General Statutes § 31-293(a). ¹ We conclude that the notice fulfilled the requirements of § 31-293(a), and that therefore Whittaker's failure to intervene timely in the action caused its right of action against the third party tortfeasor to abate.

The material facts are not disputed. On January 23, 1989, while acting in the course of her employment as director of procurements with Whittaker, the plaintiff, Barbara L. Rana, sustained various injuries when she slipped and fell while walking down a hallway leading into her office. As a result of those injuries, she properly received workers' compensation benefits from Whittaker. See General Statutes § 31-275 et seq.

Thereafter, the plaintiff initiated a third party action against the defendant, Frank Ritacco, owner of Ocean State Cleaning, who had contracted with Whittaker for maintenance services. The plaintiff's complaint alleged that the defendant had been negligent in allowing a slippery wax to remain on the floor and in failing to warn the plaintiff of the dangerous condition. On December 20, 1990, the writ, summons and complaint were given to a sheriff, who served them on the defendant on December 27, 1990. Although the return date on the writ was January 22, 1991, it was actually returned to the Superior Court in the judicial district of New London at Norwich on January 4, 1991, and was assigned a docket number on January 7, 1991.

In order to notify Whittaker of the third party action pursuant to § 31-293(a), the plaintiff mailed to it a certified letter dated December 20, 1990, along with a copy of the writ, summons and complaint. ² This notice was acknowledged by Whittaker as having been received on January 7, 1991. Approximately two and one-half years later, on June 18, 1993, Whittaker moved to intervene as a third party plaintiff. The plaintiff objected, asserting that, because the motion had not been filed within thirty days of receipt of the notice as required under § 31-293(a), it was untimely. The trial court, Hendel, J., agreed with the plaintiff and denied Whittaker's motion. Whittaker appealed from the decision of the trial court to the Appellate Court, which reversed the trial court's decision and remanded the case with direction to allow Whittaker to intervene. Rana v. Ritacco, 36 Conn.App. 635, 637-38, 652 A.2d 1040 (1995).

The Appellate Court reasoned that although § 31-293(a) requires a party to intervene within thirty days of receipt of notice of the third party action, such time limit applies only where notice was properly given. Id., at 638, 652 A.2d 1040. In this case, the Appellate Court concluded that notice was improper and, therefore, that Whittaker could intervene at any time. Id., at 640, 652 A.2d 1040. The Appellate Court reasoned that proper notice requires the satisfaction of two elements. First, the potential intervenor must be notified that a third party action has been brought. Id., at 639, 652 A.2d 1040. In the Appellate Court's view, an action is brought only when "service of process has been made upon a defendant ... and returned to court." Id. Second, a potential intervenor must be notified of the court to which the writ in the action is returnable. Id. The Appellate Court implicitly reasoned that because the plaintiff had failed to comply with the first prong in that she had notified Whittaker of the third party action prior to the date that the writ was returned to court, notice was not proper and Whittaker could intervene at any time. Id., at 639-40, 652 A.2d 1040.

Following the Appellate Court's decision to allow Whittaker to intervene, the plaintiff petitioned this court for certification to appeal, which we granted. ³ We now reverse the judgment of the Appellate Court.

" 'General Statutes § 31-293 grants to an employer who has paid workers' compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors; Robinson v. Faulkner, 163 Conn. 365, 377, 306 A.2d 857 (1972); provided that the right is exercised in a timely fashion. Olszewski v. State Employees' Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957).' Ricard v. Stanadyne, Inc., [181 Conn. 321, 323, 435 A.2d 352 (1980) ]." Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990); accord Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994). By authorizing "an employer to obtain reimbursement for workers' compensation benefits from a third party tortfeasor ... [§ 31-293] implements the public policies of preventing double recovery by an injured employee; Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992); and thereby containing the cost of workers' compensation insurance." Quire v. Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994).

"[U]nder § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more." Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. at 538, 582 A.2d 1174; Durrschmidt v. Loux, supra, 230 Conn. at 104, 644 A.2d 343.

Once a potential intervenor has been properly notified, he has thirty days within which to intervene. General Statutes § 31-293(a). "[I]f an employer or employee who is properly notified of a third party action fails to intervene in the action as a party plaintiff within thirty days from notification, 'his right of action against such third person shall abate.' " ⁴ Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); see General Statutes § 31-293(a). On the other hand, "[a]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 '[cannot] be barred from intervening by the passage of the time which this statute prescribes, because, until notice is given, the time does not begin to run.' Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967)." Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. at 537, 582 A.2d 1174; Durrschmidt v. Loux, supra, 230 Conn. at 103, 644 A.2d 343. In this case, we conclude that the plaintiff properly notified Whittaker of the third party action. Therefore, because Whittaker failed to intervene within thirty days of the date it received notice, its right of action against the defendant has abated.

Whittaker claims that the notice it received did not comply with the requirements of § 31-293(a) because the notice did not properly inform the company of "the fact that the action has been brought" by the plaintiff. ⁵ Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. at 538, 582 A.2d 1174. Relying on the Appellate Court's interpretation of the law, Whittaker argues that on the day it received notice, the action had not been brought because the writ had not yet been returned to the Superior Court. We disagree with the Appellate Court's statement of the law and, consequently, we disagree with Whittaker's position.

As we stated above, an employee or employer bringing a third party action must notify the other (1) that a third party action has been brought, and (2) of the name of the court to which the writ is returnable. This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant. See General Statutes § 52-45a; ⁶ Practice Book § 49; ⁷ Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) ("an action is commenced on the date of service of the writ upon the defendant" [internal quotation marks omitted]; Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990) ("an action is not 'commenced' until process is actually served upon the defendant"); McGaffin v. Roberts, 193 Conn. 393, 401-402 n. 9, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985); Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33-34, 392 A.2d 485 (1978); Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974) ("an action is commenced not when the writ is returned but when it is served upon the defendant"); Seaboard Burner Corp. v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958); Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941); Spalding v. Butts, 6 Conn. 28, 30 (1825).

The Appellate Court, however, strayed from this established rule and concluded that an action is not brought until a defendant has been served and such service has been returned to court. ⁸ Broderick v. Jackman, supra, 167 Conn. at 99, 355 A.2d 234. Otherwise, the court reasoned, there would be no existing action in which an employer could intervene. The Appellate Court relied on Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989), to add this second requirement. In Rogozinski, we concluded that the trial court had properly dismissed the plaintiffs' action for failure to file the return of process with the court at least six days prior to the return date. Id., at 435, 559 A.2d 1110. Rogozinski interpreted General Statutes...