Winslow v. Lewis-Shepard, Inc., LEWIS-SHEPAR

• Decision Date: 04 December 1990
• Docket Number: INC,LEWIS-SHEPAR,No. 13995,13995
• Citation: 582 A.2d 1174,216 Conn. 533
• Court: Connecticut Supreme Court
• Parties: Jeffrey S. WINSLOW v., et al.

Page 1174

582 A.2d 1174

216 Conn. 533

Jeffrey S. WINSLOW v. LEWIS-SHEPARD, INC., et al.

No. 13995.

Supreme Court of Connecticut.

Argued Oct. 5, 1990.

Decided Dec. 4, 1990.

Jason M. Dodge, Hartford, for appellant (Acme Chaston).

Robert B. Yules, with whom, on the brief, was William J. Shea, Hartford, for appellee (plaintiff).

Before SHEA, CALLAHAN, GLASS, HULL and BORDEN, JJ.

GLASS, Associate Justice.

The sole issue in this appeal is whether the content of an employee's notice to his employer concerning the employee's institution of an action against third party tortfeasors to recover damages for personal injuries sustained in the course of employment was sufficient to comply with General Statutes § 31-293. ¹ The trial court determined that the content of the employee's notice fulfilled the requirements of § 31-293, and, as a consequence, the employer's failure to intervene in the third party action within thirty days of its receipt of the employee's notice, as also required by the statute, caused its right of action against the third party tortfeasors to abate. We affirm the judgment of the trial court.

The plaintiff employee, Jeffrey Winslow, sustained personal injuries on September 15, 1986, while operating allegedly defective equipment in the course of his employment. As a result of his injuries, Winslow's employer, Acme Chaston, paid him workers' compensation benefits. Subsequently, Winslow instituted an action against several third party tortfeasors, including the named defendant, seeking damages for his personal injuries. The facts relevant to Winslow's third party action are set forth in our opinion reported in Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 562 A.2d 517 (1989). A brief account of the facts and procedural history pertinent to the issue raised for our present determination follows.

On October 28, 1988, Acme Chaston received a certified letter from an attorney whose letterhead indicated that he was a member of a Connecticut law firm. The letter also indicated that Winslow was a client of the firm, and that a copy of the letter and its enclosure had been mailed to Winslow. The letter stated: "Enclosed please find a copy of the third-party action of Jeffrey Winslow against Lewis-Shepard, Inc. et al. The writ is returnable to the Judicial District of Windham at Putnam at 155 Church Street, Putnam, Connecticut." A copy of the complaint filed by Winslow in the third party action was enclosed with the letter. In the ninth paragraph of the complaint, Winslow was identified as an employee of Acme Chaston who had been injured while working for Acme Chaston. Allegations of the time, date, place and cause of Winslow's injuries were also contained in the complaint.

On November 30, 1988, thirty-three days after receiving Winslow's letter and the copy of his complaint, Acme Chaston moved to intervene as a party plaintiff in the third party action. Winslow objected, arguing that, by failing to intervene within thirty days of the date it had received notice of the action as required by General Statutes § 31-293, Acme Chaston forfeited its right to intervene in the action. After a hearing, the trial court denied Acme Chaston's motion to intervene. Acme Chaston appealed to the Appellate Court, and thereafter, we transferred the appeal to this court pursuant to Practice Book § 4023. The sole claim of Acme Chaston before this court is that its motion to intervene in Winslow's third party action was timely filed because Winslow did not provide notice in accordance with the terms of § 31-293.

I

As a preliminary matter, we note that the trial court's order denying Acme Chaston's motion to intervene, while interlocutory, is nonetheless a final judgment for purposes of appeal. The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make "a colorable claim to intervention as a matter of right." Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n. 1, 435 A.2d 352 [1980]; Common Condominium Assns., Inc. v. Common Associates, 5 Conn.App. 288, 291, 497 A.2d 780 (1985). In this case, Acme Chaston has made a colorable claim to intervention as a matter of right because § 31-293 specifically grants an employer who has paid workers' compensation benefits to an employee the right to join as a party plaintiff in the employee's action against third party tortfeasors. See Ricard v. Stanadyne, supra, 181 Conn. at 323, 435 A.2d 352. Accordingly, Acme Chaston has appealed from a final judgment, and we will address its appeal on the merits.

II

In claiming that Winslow's letter and the copy of his complaint did not constitute notice in accordance with the terms of § 31-293, Acme Chaston primarily attacks Winslow's failure to apprise it that § 31-293 granted Acme Chaston the right to intervene in the third party action, and that this right would abate unless exercised within thirty days. Acme Chaston also argues that the notice was deficient because Winslow neglected to include in his letter "pertinent facts" allegedly necessary for Acme Chaston to exercise its right to intervene in a timely fashion, such as reference to Winslow's employment by Acme Chaston, the workers' compensation claim involved and the date of the injury. We disagree.

"General Statutes § 31-293 grants to an employer who has paid worker's 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., supra, 181 Conn. at 323, 435 A.2d 352. An 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).

In determining what particular information concerning the institution of a third party action must be furnished in order to provide notice that satisfies the requirements of § 31-293, we first look to the language employed by the legislature in the statute. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987). We are mindful when inspecting the statutory text that "the intent of the legislature is to be found not in what it meant to say but in what it did say." Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985). "When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987).

In our view, § 31-293 unambiguously prescribes the necessary ingredients of notice. Section 31-293 provides in pertinent part: "If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate...." Clearly, the only objects of the transitive verb "notify" contained in § 31-293 are "of such fact," and "of the name of the court to which the writ is returnable." The word "such" in the object "of such fact" is an adjective, referring back to the last antecedent, "brings such action against such third person." See LaProvidenza v. State Employees' Retirement Commission, 178 Conn. 23, 27, 420 A.2d 905 (1979). Thus, under § 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.

Acme Chaston concedes that Winslow's letter and the copy of his complaint notified it of the fact that Winslow had brought a third party action, and of the name of the court to which the writ in that action was returnable. Nonetheless, Acme Chaston asserts that notice in accordance with the terms of § 31-293 must also include advice regarding intervention rights as well as the legal consequences of untimely intervention. Acme Chaston would essentially have us treat as additional objects of the transitive verb "notify" the following clauses in § 31-293: "such other may join as a party plaintiff in such action within thirty days" and "if such other fails to join as a party plaintiff, his right of action against such third person shall abate."

An examination of the structure of § 31-293 reveals, however, that these independent clauses refer to a legal subject distinct from the subject which is burdened with the duty to notify. They create in "such other," the person who has not brought a third party action, the right to "join" in that action within a certain time period. In the portion of the statute that refers to the person who has brought the action and must provide notice to the other, there is no indication that such notice must include information regarding the other's right to intervene, or the time period in which it...