1997 Conn. Super. Ct. 9874 | Conn. Super. Ct. | 1997
The plaintiffs, Susan Brosnan, her husband, Peter Brosnan, and their son, Sean Brosnan, seek damages from Susan Brosnan's former employer, Sacred Heart University (Sacred Heart), the Bridgeport Roman Catholic Diocesan Corporation (Diocese) which CT Page 9875 allegedly controls Sacred Heart, its excess coverage workers' compensation carrier, North River Insurance Co. (North River), and its claims administrator, Alexis, Inc.,1 for allegedly failing to settle in good faith a workers' compensation claim filed by the plaintiff and in thereafter delaying the payment of benefits to her. The plaintiffs' amended complaint of March 3, 1997, alleges violations of CUTPA and CUIPA, negligent and intentional infliction of emotional distress, bad faith, loss of consortium, and bystander emotional distress.
The plaintiffs' amended complaint essentially alleges the following. On December 10, 1986, the plaintiff sustained a traumatic brain injury and related injuries arising out of and in the course of her employment with Sacred Heart which is under the direction, control and influence of the Diocese. Both Sacred Heart and the Diocese were self-insured for workers' compensation liability but had excess workers' compensation coverage pursuant to a policy of insurance issued by the defendant North River. The plaintiff's injury rendered her permanently disabled.
Initially, the plaintiff was told by Sacred Heart and the Diocese that they would file a workers' compensation claim on her behalf. Although the plaintiff received weekly payments of compensation for a short time, these payments "were arbitrarily and capriciously stopped by the defendants." In December, 1987, the plaintiff learned that Sacred Heart had not filed a worker' compensation claim on her behalf and hired an attorney who filed a notice of claim on or about December 9, 1987. The defendants did not file a Form 43 or any notice that they would contest her claim.2 Still, they refused to pay workers' compensation benefits to the plaintiff even though her medical and related expenses were mounting into tens of thousands of dollars. The defendants required the plaintiff to undergo an independent medical examination in New York City, which, in 1990, confirmed that the plaintiff's injuries were caused by her work-related injury.
The plaintiffs allege that the defendants "never conducted a reasonable, complete, prompt and proper investigation to develop the facts of the plaintiff's injury and claim" but "spent money for lawyers, doctors and private investigators to fight the claim. . . ." The defendants sought to exploit their economic advantage and exhibited bias against the plaintiff, making an inadequate offer to settle her claim for $570,000 which the plaintiff agreed to accept "out of frustration and desperation." CT Page 9876 The defendants then reneged on that agreement. The defendants requested another hearing before the commissioner, another medical authorization and a deposition of one of the plaintiff's physicians.
On August 2, 1994, the plaintiff completed the presentation of her case before the workers' compensation commissioner. The defendants then announced that they had no evidence or witnesses to offer, and that they were accepting compensability. The defendants did not pay the plaintiff workers' compensation until August 18, 1994, when she received a check which was $5,264.80 less than what was due. The plaintiff was required to seek the intervention of the workers' compensation commissioner who ordered interest to be paid on the arrearages. The commissioner also ordered that the defendants provide nursing care for the plaintiff. The defendants allegedly provided such care by people who were not trained, experienced or adequate for the plaintiff's needs. The defendants did not pay for the first five weeks of care provided by a traumatic brain injury technician. The defendants did not reimburse the plaintiff for other expenses until 65 weeks after they had accepted the compensability of the plaintiff's claim at the August 2, 1994 hearing.
In 1995, after the plaintiff had undergone another hospitalization, the defendants required her to undergo another independent medical examination but refused to use the medical facility which was most familiar with her condition. The plaintiff also alleges that "[f]rom 1986 to the present time, the more the Defendants learned about the stress to the Plaintiff caused by the Defendants' bad faith handling of her claim, their delay and resistance to every benefit to which she is entitled and their refusal to pay benefits to her on her behalf, the more stress they continued to cause her by delay, refusal and bad faith. the defendants have continuously refused to prepare, sign and file with the workers' compensation commissioner an agreement as to compensation."
The plaintiff further alleges that "the Defendants breached their implied covenant of good faith and fair dealing with the Plaintiffs by a continuing course of conduct of failing and refusing without proper cause to interview the Plaintiff and her husband, to properly and timely investigate Plaintiffs' claims and the cause of her injury by a prompt, fair and thorough investigation, to promptly and fairly evaluate her claims, to timely provide workers' compensation benefits including medical CT Page 9877 care and treatment, to timely pay medical bills and expenses, or to fairly settle her claims, to follow State law in their `contest' of Plaintiff's claim, to promptly and fairly adjust her claims and to promptly pay benefits when due." The plaintiff claims that "the Defendants intentionally refused to comply with the workers' compensation laws and provide workers' compensation benefits" and that "all of the Defendants' . . . actions and conduct are and were designed and intended to harass and frustrate the plaintiffs in order to bring them to settle for less than the value of their cases."
The amended complaint contains eighty-four counts. In succeeding counts against each defendant, the plaintiff, her husband, Peter Brosnan, and her minor son, Sean Michael Brosnan, each allege that the defendants' actions constitute a violation of the Connecticut Unfair Insurance Practices Act; General Statutes §§
As damages, the plaintiffs allege that they suffered delay in the receipt of workers' compensation benefits, "stress anxiety", and frustration. The plaintiff and her husband allege that they suffered financial distress and damage to their credit. The plaintiff claims that her medical condition was aggravated and that the defendants' conduct caused or contributed to her having seizures. The plaintiff Peter Brosnan alleges that as a result of the defendants' conduct, he "has had his credit adversely affected, has experienced a significant adverse impact on his life and family life, has suffered mental and emotional distress, manifested by the return of depressive symptoms, general anhedonia, inhibited sexual desire, chronic fatigue, emotional "burn out", frustration and anxiety with related feelings of anger, victimization, injustice, helplessness and hopelessness.3
Sacred Heart and the Diocese filed a motion to dismiss based on the ground that the plaintiffs' claims were governed by the exclusivity provisions of the Workers' Compensation Act. North River filed a motion to dismiss asserting the exclusivity bar and the plaintiff's failure to exhaust administrative remedies. CT Page 9878
The plaintiffs argued that their claim is not an action for compensation or benefits, but a "first party direct action in bad faith against the Defendants for their intentional and wilful tortious activities, and as such, it is not governed by the Workers' Compensation Act. The plaintiffs argue that the remedies and penalties in the Workers' Compensation Act do not give the commissioner authority to remedy the injuries for which they are seeking damages.
North River's motion was heard by the court (Rush, J.) and denied on the ground that "[t]he conduct upon which the claims are based do not relate to a personal injury arising out of and in the course of employment," but arose after the work related injury was sustained, and, therefore, are not barred by the exclusivity provisions. In ruling on North River's motion the court also held that "[t]here is no need to exhaust administrative remedies when the remedy is inadequate," citing Griswold v. Union Labor Life Ins.Co.,
Sacred Heart's motion to dismiss was heard and denied by the court (Levin, J.) on the ground that the "claimed injury does not arise out of and in the course of employment." However, "taking cognizance of the question of subject matter jurisdiction on its own," the court ordered the parties to brief whether the plaintiffs' claim is barred by failing to exhaust administrative remedies, whether §
General Statutes §
The issue here is one of legislative intent; Members ofBridgeport Housing Authority Police v. Bridgeport,
"Our resolution of this issue is guided by well established principles of statutory construction. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . We have previously recognized that our construction of the Workers' Compensation Act should make every part operative and harmonious with every other part insofar as is possible . . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. . . ." (Citations omitted; internal quotation marks CT Page 9880 omitted.) Duni v. United Technologies Corp./Pratt WhitneyAircraft Division,
First, we examine the words of the statutes.4 "As is often the case in the context of workers' compensation legislation . . . the statutory language provides little guidance. . . ." Duni v. UnitedTechnologies Corp./Pratt Whitney Aircraft Division, supra,
After a workers' compensation claim is filed, an informal hearing is held by the commissioner or chairman. "[A]ny recommendations made by the commissioner or chairman . . . shall be reduced to writing and, if the parties accept such recommendations, the recommendations shall be as binding upon the parties as an award . . . . The commissioner or chairman shall not postpone any such informal hearing if one party fails to attend unless both parties agree to the postponement." General Statutes §
The other matter which is significant for present purposes about the text of General Statutes §§
The second criteria to which courts look in construing statutes is legislative history. Like the text, the legislative history of these statutes does not contain any explicit statement as to whether an action in tort was contemplated by the legislature in addition to the statutory remedy. The legislative history of recent amendments to these statutes,7 however, reflects the following. The legislature has been well aware for some time, by testimony — including testimony from actual victims — of misconduct, sometimes extreme, committed by insurers and self-insured employers in delaying and unreasonably contesting worker's compensation claims.8 Also, business and insurance interests have frequently opposed proposals to augment the provisions for the award of interest and attorneys fees.9 Recently, in 1993, along with an amendment to General Statutes §
Third, as the text of the statutes, the case law and much of the foregoing legislative history confirms, there is little question as to the legislative policy which the monetary provisions of these statutes were designed to implement. Workers and their families had suffered mental anguish, the loss of their homes and CT Page 9883 other property, due to institutional delay in the workers' compensation system and in some cases due to the negligence, indifference and alleged intentional acts by insurers and self-insured employers in acknowledging valid claims or in suspending payment for such claims, or due to the endemic delay in the worker's compensation system. The purpose of these statutory provisions, particularly General Statutes §
Fourth, in ascertaining the legislature's intent the court examines the relationship of the statutes under examination to other existing legislation and common law principles governing the same subject matter. Thompson Peck, Inc. v. Division Drywall,Inc.,
This court's examination of the relationship of General Statutes §§
For this reason, the applicable rule here is that where the liability and the remedy are created by statute, especially within a comprehensive statutory scheme, the remedy provided is exclusive of all others. Bashford-Burmister Co. v. Aetna Indemnity Co.,
This court acknowledges that some jurisdictions agree with the plaintiffs that an action in tort may be maintained against an employer or worker's compensation insurer for consequential damages arising out of the delay in paying or in terminating workers' compensation benefits to an employee. However, "a majority of jurisdictions that have considered the question have concluded that the tort action is barred." Robertson v. Travelers Ins. Co.,
The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.
(Footnote omitted.) 2A A. Larson, [Workers' Compensation] § 68.34(c), at 13-145. Second, courts have been greatly influenced by the fact that workers' compensation statutes typically contain provisions that impose a penalty for wrongful delay or termination on benefits. Courts generally take the view that the presence of such a penalty provision in the workers' compensation statute evinces a legislative intent that the remedy for wrongful delay or termination of benefits remain within the workers' compensation system." Wolf v. Scott Wetzel Services, Inc.,
Moreover, to permit a private cause of action in tort for undue delay in accepting or paying a workers' compensation claim, for unreasonably contesting the claim, or for improperly terminating or modifying payment "would invite the indefinite prolonging of litigation and risk double recoveries and inconsistent findings of fact, a result which the legislature, in enacting a system of compensation in place of common law remedies wished to avoid." Robertson v. Travelers Ins. Co.,
95 Ill. Dec.2d 964, 69 Ill. Dec. 954,
General Statutes §
Third, engrafting a civil action onto General Statutes §§
The plaintiffs rely heavily on Carpentino v. TransportInsurance Co.,
The Carpentino court stated that "the precise issue presented is whether the exclusivity provisions of the Act bar an employee's action at law for `consequential damages' caused by the intentional `bad faith' conduct of an employer's insurer in terminating voluntary compensation payments under the Act." Id., 559. After observing that the jurisdictions were split on the issue and that the question as to what the Connecticut Supreme Court would hold was "not free from doubt"; id., 561; the court held that an action for bad faith could be maintained, for five reasons.18
First, the court, in essence, stated that the plaintiff's claimed injuries did not arise out of and in the course of his employment. Id., 562. While this is true, it is irrelevant to whether the legislature intended that General Statutes §§
The Carpentino court continued,
Second, the Act should not be an impervious barrier, insulating a wrongdoer from the payment of just and fair damages for intentional tortious acts only very tenuously related to workplace injuries. The public interest requires that wrongs be redressed, that unlawful conduct be discouraged and punished, and that an innocent victim be compensated for his injuries.
Third, it is reasonable to infer that, because the penalty provision in the Act provides only for attorney's fees and six percent interest, the legislature contemplated that additional remedies could be sought in an action at law for tort damages to compensate fully claimants for the insurer's actions unrelated to workplace accidents. The penalties prescribed, which in the overwhelming majority of cases will be triggered by an insurer's mere inadvertence, negligence, or mismanagement of the employee's personal injury [sic] claim, seem hardly sufficient to remedy an insurer's intentional tortious conduct.
Id., 562. No citation of case law, analysis of Connecticut's workers' compensation scheme or examination of its legislative history accompanied these statements.
Connecticut's workers' compensation act is not "an impervious barrier, insulating a wrongdoer" from payments "for intentional tortious acts" in violating voluntary agreements or other wrongs in subverting the requirements of the act. But the measure of payments is manifestly a proper question for the legislature. The legislative history reflects that tradeoffs and legislative compromises have been made between competing interest groups. The legislative will, a product of those tradeoffs and compromises, expressed in the workers' compensation act is conclusive on the court. Vigliante v. New Haven Clock Co.,
Contrary to the suggestion in Carpentino, there is absolutely nothing in the legislative history of General Statutes §§
Next the Carpentino court stated: "it is questionable whether an `exclusivity' provision in the Act can be constitutionally sustained if it results in an aggrieved person being deprived of his due process rights to full redress for another's wilful misconduct." Id., 562. Again, no citation of authority or analysis followed this sweeping statement. Here, the plaintiffs makes no constitutional claim. Therefore, this court does not address it, except to note that any such due process claim was disposed of inCoolick v. Windham,
"Finally," the Carpentino court stated, "the Court is not persuaded that the effect of its holding will open the floodgates to lawsuits against insurers by every injured employee who may be dissatisfied with the processing or the amount of his compensation benefits." Id., 562. Again, no authority was cited. Such comments by the judiciary, like second marriages, tend to be expressions of hope over experience. However, after the Alaska Supreme Court held in 1974 in Stafford v. Westchester Fire Ins. Co.,
Of course, since it is a statutory scheme we are construing, it is relatively insignificant as to whether the action which the plaintiffs advance would, if sustained, "open the floodgates". The General Assembly is entirely at liberty to enact legislation which floods the courts. Here, however, this court finds no such intent and, for that reason, does not find Carpentino persuasive authority.20
The plaintiffs claim that the defendants' acts and omissions breached their duty of good faith and fair dealing. "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other party to receive the benefits of the agreement."Habetz v. Condon,
There are two contracts implicated in the plaintiffs' complaint. The first is the plaintiff's contract of employment with her employer, Sacred Heart. The relation between employer and employee is contractual, and the Workers' Compensation Act is an implied part of the contract between them. Fidelity Casualty Ins.Co. of New York v. Sears, Roebuck Co.,
The second contract implicated in the plaintiffs' complaint is the policy of insurance alleged to exist between the defendant The North River Insurance Company on the one hand and Sacred Heart and the Diocese on the other. Significantly, General Statutes §
Here, it is unnecessary to determine the nature or extent of the defendants' duty of good faith and fair dealing.21 For the reasons, discussed supra, that duty is actionable only to the extent provided in and in the context of the Workers' Compensation Act. See, e.g., General Statutes §§
For the same reasons, the plaintiff may not maintain an action against the defendants under the Connecticut Unfair Insurance Practices Act (CUIPA); General Statutes §
Since the plaintiff may not maintain an action at law against the defendants, neither may the plaintiff Peter Brosnan, her husband, or the plaintiff Sean Brosnan, her son, maintain such an action. In general, an employer and its insurer do not owe an independent duty under the Workers' Compensation Act to dependents of an injured employee since "a dependent has no compensation rights unless and until the employee dies. . . ." Duni v. UnitedTechnologies Corp./Pratt Whitney Aircraft Division, supra,
The court recognizes that "[t]he purpose of the Workmen's Compensation Act is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment"; Middletown v. Local Union #1073,
"In 1990, the Legislative Program Review and Investigations Committee undertook a comprehensive study of the workers' compensation system and, in January, 1991, issued its report entitled, `Workers' Compensation in Connecticut' (Report). The committee `found that the system's current administrative structure is not responsive to the concerns of either employers, who pay for benefits, or employees, who receive benefits. Management is weak and accountability is lacking. District offices vary significantly in terms of outcomes and efficiency, and their operating policies and procedures are not uniform. Administrative resources for central and district office operations are inadequate, particularly given the dramatic growth in workload, and backlogs and delays in case processing are widespread.' Report, p. i." (Footnotes omitted.) Dixon v. United Illuminating Co.,
This brings us to the procedural posture of the case. The matter came before the court on the defendants' motions to dismiss. Although those motions claimed that the plaintiffs' complaint was barred by the exclusivity provisions of the workers' compensation act, the provision on which the defendants relied was General Statutes §
In Grant v. Bassman,
While such a challenge no doubt "is properly raised by a special defense," it is much too late in the day, and rather Orwellian, to contend that a claim that a plaintiff has not alleged a cause of action cannot be challenged by a motion to strike, the successor to the demurrer. See Kowal v. Hofher,
A claim that a cause of action is barred by General Statutes §
The motions before the court are motions to dismiss. However, the Appellate Court has held that a trial court may treat a motion to dismiss as a motion to strike. Commissioner of EnvironmentalProtection v. Lake Phipps Land Owners Corporation,
By The Court
Bruce L. Levin Judge of the Superior Court
