Welch v. Arthur A. Fogarty, Inc.

• Decision Date: 07 February 1969
• Court: Connecticut Supreme Court
• Parties: Woodrow WELCH et al. v. ARTHUR A. FOGARTY, INC.

Page 627

255 A.2d 627

157 Conn. 538

Woodrow WELCH et al. v. ARTHUR A. FOGARTY, INC.

Supreme Court of Connecticut.

Feb. 7, 1969.

Frank DeNezzo, Hartford, for appellant (named plaintiff).

Donald P. Chernoff, Hartford, with whom, on the brief, was Edward S. Pomeranz, Hartford, for appellee (intervening plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

The plaintiff Woodrow Welch, while employed by the Elmwood Electric Company, hereinafter referred to as Elmwood, was injured in the course of his employment on March 8, 1962, when his employer's pickup truck, in which he was riding as a passenger, was struck by a tractor-trailer truck owned by the defendant. The trial court found the following facts: As a result of the injuries which Welch sustained in the collision, Elmwood became obligated to pay and did pay to Welch compensation under the provisions of the Workmen's Compensation Act. On February 28, 1963, Welch commenced the presentaction against the defendant to recover damages for the injuries which he sustained as a result of the collision. On May 24, 1963, with the permission of the court, Elmwood filed an intervening complaint. Elmwood paid on behalf of Welch the sum of $1740.30 for medical expenses and the sum of $1040 for compensation for temporary total disability for the periods from March 9, 1962, May 25, 1962, and from March 10, 1963, to May 13, 1963. On June 3, 1964, Welch, his wife and children entered into a stipulation with Elmwood, and its insurer, under the terms of which Elmwood and its insurer agreed to pay to Welch the additional sum of $7000 in 'full, final and complete settlement, adjustment, accord and satisfaction for all claims which * * * (Welch and his dependents) might otherwise have against * * * (Elmwood and its insurer).' The stipulation was approved on June 9, 1964, by the the compensation commissioner for the first congressional district and was found by him to be 'a just and reasonable settlement of a disputed claim.' In accordance with the stipulation an award was made by the commissioner. Elmwood has paid to Welch the sum of $7000 in accordance with the stipulation and the award made pursuant to it. The trial court found that, at the time of the execution of the stipulation and at the time when Elmwood paid Welch the further sum of $7000, Welch understood and realized that Elmwood, as his employer, was to be reimbursed for all its payments made to his out of the proceeds of the pending third-party action against the defendant. During the trial of the case against the third-party defendant, the parties entered into a stipulation for judgment in favor of the plaintiffs to recover of the defendant the sum of $25,000 and submitted to the court the issue whether there should be an apportionment of the amount of the judgment between Welch and the intervening plaintiff, Elmwood, in accordance with § 31-293 of the General Statutes, and if so, how much should be awarded to each of them.

The trial court concluded that, under the terms of the stipulation, the payment by Elmwood to Welch of the further sum of $7000 was in full, final and complete settlement of all claims which Welch might otherwise have against Elmwood and its insurer; that the stipulation was intended to settle the claims of Welch and his dependents against Elmwood for compensation payments to become due under the Workmen's Compensation Act only and was not intended to affect the claims of either Elmwood or Welch against the defendant in the negligence case; and that the judgment for $25,000 should be apportioned so that Welch will recover of the defendant the sum of $15,219.70 and the intervening plaintiff Elmwood will recover the sum of $9780.30.

Welch claims that the trial court erred in finding that at the time of the stipulation between him and Elmwood, he 'understood and realized' that his employer would be reimbursed out of the proceeds of the third-party action which was pending against the defendant for all payments made to him by the employer. This finding was predicated upon he testimony of the attorney who represented Welch at the time of the stipulation. His testimony was admitted by the trial court over the objection of Welch, and exception was duly noted. Welch also assigns error in the ruling of the trial court admitting this testimony into evidence and in the conclusions of the trial court.

The fundamental contention of Welch is that, under the stipulation of June 3, 1964, the intervening plaintiff, Elmwood, released and relinquished any rights which it had pursuant to § 31-293 of the General Statutes to any portion of the judgment rendered in this action against the defendant. ¹ The stipulation was a voluntary agreement within the terms of § 31-296 of the General Statutes. ² Sugrue v. Champion 128 Conn. 574, 578, 24 A.2d 890; Wallace v. Lux Clock Co., 120 Conn. 280, 284, 180 A. 466. Such a voluntary agreement is subject to modification by a compensation commissioner pursuant to § 31-315 of the General Statutes under certain stated conditions. ³ The commissioner is given the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. An award may be opened and modified where there is fraud or mistake. Mazzotta v. Mazzotta, 121 Conn. 149, 151, 183 A. 408; see Metall v. Aluminum Co. of America, 154 Conn. 48, 53, 221 A.2d 260. From the record, it does not appear that either Welch or Elmwood has requested the workmen's compensation commissioner to modify the award in any respect.

An examination of the stipulation and award indicates that it was an agreement compromising a disputed claim for workmen's compensation and providing for a lump-sum payment in settlement of all claims for compensation of any nature arising out of the accident in question, including claims of Welch's dependents. At the time of the execution of the stipulation, Elmwood, under General Statutes § 31-293, had certain substantive rights in the third-party action which it had entered as an intervening plaintiff on March 24, 1963. It had a claim consisting of (1) the amount of any compensation paid on account of the injury which was the subject of suit and (2) an amount equal to the present worth of any probable future payments which it had by award become obligated to pay on account of such injury. Although the stipulation did not specifically mention the suit against the third party, Elmwood and Welch were, of course, cognizant of it. The signers of the stipulation consisted of Welch, his wife and prospective dependent, four minor children acting by and through Welch and his wife as parents and natural guardians, Elmwood the employer respondent, and the insurer respondent. In the body of the stipulation all of these are referred to as the 'parties to the controversy.' The final paragraph of the stipulation provided as follows: It is further agreed by and between the parties that this stipulation was not induced or entered into by fraud, accident, mistake or duress and that none of the parties hereafter shall have any further claims under the Workmen's Compensation Act of the State of Connecticut because of the accident herein described.' All of the parties united in requesting that the workmen's compensation commissioner approve the stipulation.

As far as the record in this case discloses, the workmen's compensation commissioner had only the stipulation before him. Approval of such a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the act. See Beers, 'Compromis Agreements in Workmen's Compensation; Their Limitations,' 16 Conn.B.J. 161, 174. 'The provisions of...