Reichert v. Sheridan

• Decision Date: 21 July 1994
• Docket Number: No. 12150,12150
• Citation: 34 Conn.App. 521,642 A.2d 51
• Court: Connecticut Court of Appeals
• Parties: Francis REICHERT v. James J. SHERIDAN, Jr.

Page 51

642 A.2d 51

34 Conn.App. 521

Francis REICHERT v. James J. SHERIDAN, Jr.

No. 12150.

Appellate Court of Connecticut.

Argued March 22, 1994.

Decided May 31, 1994.

Certification Granted Limited to the

Following Issues July 21, 1994.

Paul W. Smith, Windsor Locks, for appellant (plaintiff).

Joseph Dieso, Hartford, for appellee (defendant).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

The issues presented in this appeal are, first, whether notice of an employer's suit against a third party tortfeasor, otherwise valid under General Statutes § 31-293(a), ¹ is nonetheless invalid because it was sent by the employer's insurance carrier instead of by the employer and, second, whether the abatement provision of § 31-293(a) ² bars an employee's right of action. ³ The plaintiff, Francis Reichert, was injured while employed by the town of Suffield when he was struck by the defendant's truck. The town sued the defendant, James J. Sheridan, Jr., in November, 1991, to recover moneys paid to the plaintiff under the Workers' Compensation Act (Act). ⁴

The plaintiff received notice of the suit through a letter from an attorney representing the town's workers' compensation insurance carrier. The letter was captioned "Town of Suffield vs. James J. Sheridan, Jr." It explained the relationship between the insurance company and the town and stated that suit was being brought against the defendant based on the plaintiff's accident. The letter advised the plaintiff that he would be barred from recovery if he failed to join the suit within thirty days and encouraged the plaintiff to give the letter to an attorney. Finally, copies of the writ, summons and complaint in the town's action against the defendant were enclosed with the letter.

Notwithstanding the letter, the plaintiff did not join the town's action, but brought a separate action two months later. The defendant moved for summary judgment claiming that the plaintiff's suit was barred by the abatement provision of § 31-293. The trial court agreed and rendered summary judgment. This appeal followed. We affirm the judgment of the trial court.

I

The plaintiff first claims that summary judgment was improper because a genuine issue of material fact existed regarding whether the notice requirement of § 31-293 had been satisfied. Specifically, the plaintiff asserts that the notice was invalid because it was sent by an attorney representing the town's insurance company and not the town itself. The trial court determined that no genuine issue of material fact existed regarding the sufficiency of the notice provided to the plaintiff. We agree.

The standard governing our review of a trial court's summary judgment ruling is clear. Summary judgment "shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 384. Once the movant shows an absence of any disputed material fact, the opponent must show the existence of a genuine issue of material fact together with supporting evidence. Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn.App. 162, 165-66, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Id., at 166, 604 A.2d 1339.

Section 31-293(a) provides that both employers and employees may proceed at law to recover losses due to third party tortfeasors. It further requires that the party who brings the action against the third party must notify the other that the action has been brought and provide the name of the court in which the action is pending so that the nonparty may join. General Statutes § 31-293(a); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). If the nonparty fails to join the suit within thirty days, "his right of action against the third person shall abate." General Statutes § 31-293(a); Winslow v. Lewis-Shepard, Inc., supra, at 538, 582 A.2d 1174.

In this case, the town, as employer, sued the defendant to recoup the amounts paid to the plaintiff under the act. The plaintiff received notice that the town had brought an action against the defendant and where the action was maintained. ⁵ The notice also warned the employee that failure to join within thirty days would result in his being barred from recovery, advised him to give the notice to an attorney and included a copy of the writ, summons and complaint. Viewed in the light most favorable to the plaintiff, this evidence demonstrates that the plaintiff received ample notice of the employer's suit.

The plaintiff claims, however, that the notice was not statutorily sufficient because it was sent by the attorney representing the town's workers' compensation insurance carrier rather than the town itself. In light of the actual notice present on these facts, we decline to adopt so rigid a rule. We will not elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose. State v. Chapman, 227 Conn. 616, 621, 632 A.2d 674 (1993), rev'd on other grounds, 229 Conn. 529, 643 A.2d 1213 (1994). The notice explained the relationship between the insurance company and the town and clearly established that the town had brought suit.

We recognize that insurance carriers are not equivalent to employers for the purposes of notice under § 31-293. Johndrow v. State, 24 Conn.App. 719, 721, 591 A.2d 815 (1991); McClendon v. Soos, 18 Conn.App. 614, 618, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989); Misiurka v. Maple Hill Farms, Inc., 15 Conn.App. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Those cases, however, do not control this situation. In those cases, notice to the insurance company, which had no right of action to protect, was held to be insufficient under the statute. Johndrow v. State, supra, 24 Conn.App. at 721, 591 A.2d 815; McClendon v. Soos, supra, 18 Conn.App. at 618, 559 A.2d 1163; Misiurka v. Maple Hill Farms, Inc., supra, 15 Conn.App. at 384, 544 A.2d 673. The important issue was that the nonparty that had a right of action to protect be notified of suit. Johndrow v. State, supra, 24 Conn.App. at 721, 591 A.2d 815; McClendon v. Soos, supra, 18 Conn.App. at 618, 559 A.2d 1163; Misiurka v. Maple Hill Farms, Inc., supra, 15 Conn.App at 384, 544 A.2d 673. Because the nonparty identified in the statute had not received notice, the statute had not been satisfied. Johndrow v. State, supra, 24 Conn.App. at 721-22, 591 A.2d 815; McClendon v. Soos, supra, 18 Conn.App. at 618, 559 A.2d 1163; Misiurka v. Maple Hill Farms, Inc., supra, 15 Conn.App. at 384, 544 A.2d 673. In this case, conversely, the nonparty did receive notice: the plaintiff employee was notified of suit and given ample opportunity, even encouraged, to protect his rights. He now suffers from his own failure.

Further, it is the policy of our courts to construe the act liberally in order to further its general purpose of compensating employees for injuries suffered in the course of employment. Misiurka v. Maple Hill Farms, Inc., supra, 15 Conn.App. 384, 550 A.2d 1083. The notice requirements of the act, however, have been strictly interpreted because such a construction furthered the general purpose of the act. See id. Strict interpretation of the act in this case would not further its general purpose: the plaintiff employee was compensated for his injuries under the act. He is barred from further recovery simply through his failure to take advantage of the procedure provided for in the act. Section 31-293(a) " 'does not protect those who are less than vigilant in safeguarding their own legal rights. The imperfection is not in the statute which provides a simple means of effectuating the rights created, but in those who fail to avail themselves of its benefits for no justifiable reason.' " Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 490, 528 A.2d 826 (1987), quoting Norwalk v. Van Dyke, 33 Conn.Sup. 661, 667, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976).

II

In light of the conclusion that no genuine issue of material fact existed regarding sufficiency of the notice, we must now consider whether the defendant deserved judgment as a matter of law. The plaintiff claims that § 31-293(a) does not bar his action even though he received notice but failed to join in the town's action. As in every case involving interpretation of a statute, we must start with the language of the statute itself. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987). The intent of the legislature is to be found not in what it meant to say but in what it did say. Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. at 537, 582 A.2d 1174. When the language of the statute is plain and unambiguous, we need look no further. Id., at 538, 582 A.2d 1174.

Section 31-293(a) begins by stating that when an employee is injured by a third person in such a manner as to be governed by the Workers' Compensation Act, the employee can still proceed at law against the third person. Norwalk v. Van Dyke, supra, 33 Conn.Sup. at 665-66, 366 A.2d 554, citing Uva v. Alonzy, 116 Conn. 91, 97, 163 A. 612 (1933). This continued right is distinct from the employee's common law right to sue the employer, which is abrogated under General Statutes § 31-284. Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 744, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991). Further, the provision permitting third party suits ensures that an employee's recovery from a third party tortfeasor will not be diminished by the amount received under the act. See Baystate Moving Systems, Inc. v....