Worsham v. Greifenberger

• Decision Date: 12 August 1997
• Docket Number: No. 15491,15491
• Citation: 698 A.2d 867,242 Conn. 432
• Court: Connecticut Supreme Court
• Parties: Charles A. WORSHAM v. Eric M. GREIFENBERGER et al.

Page 867

698 A.2d 867

242 Conn. 432

Charles A. WORSHAM v. Eric M. GREIFENBERGER et al.

No. 15491.

Supreme Court of Connecticut.

Argued March 27, 1997.

Decided Aug. 12, 1997.

Christopher C. Burdett, Stamford, with whom was Rhonna W. Rogol, for appellant (plaintiff).

Linda Gray MacDonald, Hartford, for appellees (defendants).

William F. Gallagher and Thomas J. Airone, New Haven, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, NORCOTT, PALMER and McDONALD, JJ.

BORDEN, Associate Justice.

The dispositive issue in this appeal is whether the due process clause of the fourteenth amendment to the United States constitution requires that notice of the initiation of proceedings against a third party tortfeasor pursuant to the Workers' Compensation Act; General Statutes § 31-293(a); ¹ include, not only the notice requirements enumerated in the statute, but also notification that the failure of the recipient to move to intervene in the action within thirty days of the notice will result in the complete abatement of the recipient's right to bring an action. The plaintiff, Charles Worsham, appeals ² from the trial court's granting of summary judgment in favor of the defendants, Eric Greifenberger, and his employer, Gelco Corporation. The trial court concluded that the plaintiff's cause of action had abated pursuant to § 31-293 because of his failure timely to intervene in an action brought by his employer, National Guardian Security (National), against the defendants. The plaintiff claims that the trial court's judgment is flawed because the lack of notification of the limited period during which he could intervene, and the failure to warn him of the consequences of failing timely to intervene, rendered the notice of his employer's action constitutionally inadequate to support a complete abatement of his cause of action. We agree and, accordingly, we reverse the judgment of the trial court.

The material facts are undisputed. Following a September 23, 1991 motor vehicle accident that involved the plaintiff, who was driving a vehicle owned by National, the plaintiff filed a claim for, and received, benefits under the Workers' Compensation Act. On July 1, 1992, National instituted an action against the defendants under § 31-293 in order to recover the workers' compensation benefits that it had paid to the plaintiff. Pursuant to § 31-293, National notified the plaintiff of the initiation of those proceedings by a certified letter dated August 12, 1992. The letter identified the applicable court and docket number, and stated that the action was being taken pursuant to § 31-293. ³ The letter did not inform the plaintiff that, in accordance with § 31-293, his cause of action against the defendants would abate if he failed to intervene in National's action within thirty days. The plaintiff did not intervene in that action.

On June 23, 1993, the plaintiff filed this action against the defendants, alleging injuries arising from the negligence of Greifenberger. The defendants ultimately moved for summary judgment, claiming that the plaintiff's claim had abated because he had not intervened as a plaintiff in National's action within thirty days of the notice contained in the August 12, 1992 letter from National, as required by § 31-293. The trial court agreed with the defendants, and granted their motion for summary judgment. This appeal followed. ⁴

The plaintiff claims that the complete abatement of his cause of action against the defendants in the circumstances of this case violates his federal and state ⁵ due process rights. ⁶ Specifically, he argues that the August 12, 1992 letter from National provided him insufficient notice of the procedurally fatal consequences of a failure to move to intervene as a party plaintiff within thirty days as required by § 31-293. We agree.

We first note that the notice provided in this case comported with the statutory notice requirements of § 31-293. These statutory requirements for notice have been clearly settled by prior decisions of this court. In Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 582 A.2d 1174 (1990), an employer sought to intervene, after the thirty day period had expired, in a third party action of its employee, who had received compensation benefits. Like the plaintiff in the present case, the employer in Winslow claimed that the abatement provision of § 31-293 should not apply to it because the notice received from the employee initiating the action failed to inform the employer that its right to intervene would abate unless exercised within thirty days. Id. at 536-37, 582 A.2d 1174. The employer argued that § 31-293 required that notice include this information. We held that "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." Id. at 538, 582 A.2d 1174. In Durrschmidt v. Loux, 230 Conn. 100, 644 A.2d 343 (1994), we considered a claim that valid notice to an employer must include notice of the employment relationship. We again held that the statute requires only the two facts set forth in Winslow. Id. at 104, 644 A.2d 343. Finally, Reichert v. Sheridan, 34 Conn.App. 521, 528, 642 A.2d 51 (1994), aff'd, 233 Conn. 251, 658 A.2d 96 (1995), clarified that the notice and abatement provisions of § 31-293 also apply to situations in which injured employees sought to join third party actions initiated by employers.

In the present case, the August 12, 1992 letter sent to the plaintiff by National set forth the information required by Winslow. The letter provided: "Pursuant ... to [General Statutes § 31-293], we have issued a Writ, Summons and Complaint against [the defendants], owner and operator respectively of the automobile which rear ended your motor vehicle and caused you to sustain injuries. Said action was returnable to the Superior Court for the Judicial District of Stamford/Norwalk at Stamford on August 11, 1992...."

The prior cases interpreting § 31-293, however, did not involve constitutional claims regarding the sufficiency of the statutory notice. Whether the due process clause requires that the notice contain more information, therefore, remained an open question. ⁷ We conclude that it does.

Our due process inquiry takes the form of a two part analysis. "[W]e must determine whether [the claimant] was deprived of a protected interest, and, if so, what process was his due." Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982); see also Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972); Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 322, 627 A.2d 909 (1993); State v. Campbell, 224 Conn. 168, 181, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2365, 124 L.Ed.2d 271 (1993) ("[d]ue process analysis begins with the identification of the life, liberty or property interest at stake"). The plaintiff's right to pursue his tort remedy rises to the level of a property interest protected by the due process clause. "An interest protected or cognizable under the due process clause must have a basis in existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits...." (Internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 437-38, 650 A.2d 557 (1994). An individual's entitlement to a prospective cause of action is well settled in our state law. "A right of action, including one for personal injuries, is a vested property interest, before as well as after judgment." Massa v. Nastri, 125 Conn. 144, 147, 3 A.2d 839 (1939). Moreover, the United States Supreme Court has held that "a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause." Logan v. Zimmerman Brush Co., supra, 455 U.S. at 428, 102 S.Ct. at 1154.

Furthermore, the plaintiff has suffered a deprivation of this property interest. In the context of a § 31-293 proceeding such as this, a trial court's granting of summary judgment in favor of the defendants on the basis that the plaintiff's action was filed more than thirty days after notice of the initiation of the proceedings extinguishes the plaintiff's claim permanently and completely. See Reichert v. Sheridan, supra, 34 Conn.App. at 528-31, 642 A.2d 51. Because this is precisely what took place in the present case, the plaintiff has unquestionably been deprived of his interest in his tort claim. ⁸

Because the plaintiff was deprived of an interest that rises to the level of a property interest protected by the due process clause, we next consider what process is due the plaintiff. See Logan v. Zimmerman Brush Co., supra, 455 U.S. at 428, 102 S.Ct. at 1154. Although we have noted that the "[f]undamental tenets of due process ... require that all persons directly concerned in the result of an adjudication be given reasonable notice"; Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979); we have not had occasion to address the due process requirements for notice in this or comparable circumstances. We are not completely without guidance, however, because "[i]n cases with issues involving the sufficiency of notices under due process standards, a starting point is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)...." Wilson v. Health & Hospital Corp., 620 F.2d 1201, 1214 (7th Cir.1980).

The United States Supreme Court in Mullane stated that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to...