Rivera v. City of Meriden, No. CV04-4000526-S (CT 3/23/2006), CV04-4000526-S
| Decision Date | 23 March 2006 |
| Docket Number | No. CV04-4000526-S,CV04-4000526-S |
| Parties | Yolanda Rivera et al. v. City of Meriden et al. Opinion No.: 92875 |
| Court | Connecticut Supreme Court |
In this case the administrators of the Estate of Eugenio Torres have brought a wrongful death action against various defendants. On October 7, 2002, Torres was employed by Milestone Restoration, Inc. and was working at a Meriden municipal building doing work for the City of Meriden. He was electrocuted when he came in contact with an overhead power line maintained by the defendants Connecticut Light and Power Company and Northeast Utilities (CL&P/NU). The Estate of Torres sued, among others, these two companies. Torres's employer Milestone then filed an intervening complaint on August 11, 2004 to recover workers' compensation benefits paid on behalf of Mr. Torres. CL&P/NU then filed a two-count counterclaim against Milestone. The motion before the court is a motion to strike the two counts of the counterclaim. The counterclaim plaintiffs, CL&P/NU, have withdrawn the second count and agree that it "does not state a cognizable claim for common law indemnification" under our law.
As to the First Count, Milestone advances two arguments. Although our state forbids joint contribution among joint tortfeasors, where a viable active/passive negligence theory is advanced one tortfeasor can seek indemnification against another tortfeasor, Kaplan v. Merberg Wrecking, Co., 152 Conn. 405 (1955). But, argues Milestone, this theory cannot be used against an employer who has paid benefits under the Workers' Compensation Act, cited are Barry v. Quality Steel Products, 263 Conn. 424 (2003); Therrien v. Safeguard Manuf. Co., 180 Conn. 91 (1980). Ferryman v. Groton, 212 Conn. 138, 144-45 (1998), provides the only exception—"situations where there exists an independent legal relationship between the third party (CL&P/NT) and the employer (Milestone). Here it is argued "there is no independent relationship, contractual or otherwise, between Milestone Restoration Inc. and the co-defendant utilities." The utilities have not attempted to assert such a relationship and they cannot maintain that they are third-party beneficiaries of the contract between Milestone and the City of Meriden.
The utilities maintain that "the first count is not barred by the exclusive remedy provision set forth in Connecticut General Statutes section 31-284 because the counterclaim plaintiffs have sufficiently alleged the basis for an independent duty as between Milestone and the counterclaim plaintiffs (CL&P/NU). The utility companies rely on two cases, Britt v. Danziger Development, 28 Conn. L. Rptr. 625 (Rogers, J. 2001); also see Scrivenes v. Pepperidge Farm Inc., 18 Conn. L. Rptr. 426 (1997), written by the undersigned and mentioned in Britt. To appreciate the argument made by the utilities it is necessary to refer to the allegations made in the first count of the counterclaim:
2. Upon information and belief, Eugenio Torres (hereinafter" Torres") was an employee of Milestone as of October 2, 2002 and for some period of time prior thereto.
3. Upon information and belief, Torres was directed by Milestone, on October 2, 2002 and on prior dates, to power wash, point, and caulk the Stoddard Municipal Building in Meriden, Connecticut, pursuant to a Contract entered into between Milestone and the City of Meriden.
4. Upon information and belief, the Contract between the City of Meriden and Milestone provided that, among other things:" The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury, or loss to: (1) all employees on the work and all other persons who may be affected thereby; (2) all the work and all other materials and equipment to be incorporated therein, whether in storage or on the site, under the case, custody, or control of the Contractor or any of their Subcontractors; and (3) other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designed for removal, relocation, or replacement in the course of construction." (Emphasis added by pleader.)
5. Upon information and belief, the Contract further provided that, among other things: "The Contractor shall erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent utilities." (Emphasis added by pleader.)
6. Upon information and belief, the Bidding Documents, which were made part of the Contract, require that Milestone take necessary precautions sufficient to fully comply with OSHA requirements.
7. On October 2, 2002 and prior dates, Eugenio Torres was assigned and dispatched by Milestone to fulfill Milestone's obligations under the Contract.
8. In the underlying complaint, the plaintiffs Yolanda Rivera, Administrator and Dennis Rivera, Administrator, allege that on October 2, 2002, while in performance of his duties, Eugenio Torres was killed when he came in contact with an overhead electric power line.
9. Prior to and on October 2, 2002, Milestone was aware of and had knowledge of the presence of utilities adjacent to the work site, specifically, overhead electric power lines adjacent to the Stoddard Municipal Building in Meriden, Connecticut, and was aware that its employees would be working in close proximity to the adjacent power lines.
10. Prior to and on October 2, 2002, Milestone instructed Torres to power wash, point, and/or caulk the Stoddard Municipal Building in a workspace in close proximity to electric power lines.
11. In violation of its duty under the Contract to "erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent utilities," and in violation of its duty under the Contract to "provide all reasonable protection to prevent damage, injury, or loss to . . . utilities not designed for removal, relocation, or replacement in the course of construction," Milestone never notified The Connecticut Light and Power Company or Northeast Utilities Service Company that Milestone's employees would be working in close proximity to overhead electric power lines.
12. If the plaintiff's decedent Eugenio Torres suffered the injuries and damages alleged, then said damages were caused by Milestone's acts or omissions in one or more of the following ways.
(a) Milestone failed to "erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent utilities," as required by the Contract:
(b) Milestone failed to "take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damages, injury, or loss to: (1) all employees on the work and all other persons who may be affected thereby," as required by the Contract;
(c) Milestone failed to take necessary precautions to comply with OSHA requirements, including, but not limited to, 29 CFR 1926.453(b)(2)(v), 29 CFR 1926.454(a), 29 CFR 1926.600(a)(6), 29 CFR 1926.550(a)(15), and 29 CFR 1926.416(a), as required by the Contract;
(d) Milestone failed to notify The Connecticut Light and Power Company or Northeast Utilities Service Company that its employees would be working in close proximity to overhead electric power lines, as required by the Contract;
(e) Milestone failed to properly train, instruct, and equip its employees regarding identifying and addressing electrical hazards and safety procedures when operating in close proximity to overhead electric wires, as required by the Contract.
In Scrivenes this court cited a comment made in Larson's Workmens' Compensation Law. That comment now appears in volume 7 at...
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