236 Conn. 330 | Conn. | 1996
The dispositive issue in this certified appeal is whether the plaintiffs notice to her employer, Whitta
The material facts are not disputed. On January 23, 1989, while acting in the course of her employment as director of procurements with Whittaker, the plaintiff, Barbara L. Rana, sustained various injuries when she slipped and fell while walking down a hallway leading into her office. As a result of those injuries, she properly received workers’ compensation benefits from Whittaker. See General Statutes § 31-275 et seq.
Thereafter, the plaintiff initiated a third party action against the defendant, Frank Ritacco, owner of Ocean State Cleaning, who had contracted with Whittaker for maintenance services. The plaintiffs complaint alleged that the defendant had been negligent in allowing a slippery wax to remain on the floor and in failing to warn the plaintiff of the dangerous condition. On December 20, 1990, the writ, summons and complaint were given to a sheriff, who served them on the defendant on December 27, 1990. Although the return date on the writ was January 22, 1991, it was actually returned to the Superior Court in the judicial district of New London at Norwich on January 4, 1991, and was assigned a docket number on January 7, 1991.
In order to notify Whittaker of the third party action pursuant to § 31-293 (a), the plaintiff mailed to it a certified letter dated December 20, 1990, along with a
The Appellate Court reasoned that although § 31-293 (a) requires a party to intervene within thirty days of receipt of notice of the third party action, such time limit applies only where notice was properly given. Id., 638. In this case, the Appellate Court concluded that notice was improper and, therefore, that Whittaker could intervene at any time. Id., 640. The Appellate Court reasoned that proper notice requires the satisfaction of two elements. First, the potential intervenor must be notified that a third party action has been brought. Id., 639. In the Appellate Court’s view, an action is brought only when “service of process has been made upon a defendant . . . and returned to court.” Id. Second, a potential intervenor must be notified of the court to which the writ in the action is returnable. Id. The Appellate Court implicitly reasoned that because the
Following the Appellate Court’s decision to allow Whittaker to intervene, the plaintiff petitioned this court for certification to appeal, which we granted.
“ ‘General Statutes § 31-293 grants to an employer who has paid workers’ 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., [181 Conn. 321, 323, 435 A.2d 352 (1980)].” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990); accord Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994). By authorizing “an employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor . . . [§ 31-293] implements the public policies of preventing double recovery by an injured employee; Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992); and thereby containing the cost of workers’ compensation insurance.” Quire v. Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994).
“[U]nder § 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
Once a potential intervenor has been properly notified, he has thirty days within which to intervene. General Statutes § 31-293 (a). “[I]f an employer or employee who is properly notified of a third party action fails to intervene in the action as a party plaintiff within thirty days from notification, ‘his right of action against such third person shall abate.’ ”
Whittaker claims that the notice it received did not comply with the requirements of § 31-293 (a) because
As we stated above, an employee or employer bringing a third party action must notify the other (1) that a third party action has been brought, and (2) of the name of the court to which the writ is returnable. This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant. See General Statutes § 52-45a;
The Appellate Court, however, strayed from this established rule and concluded that an action is not brought until a defendant has been served and such service has been returned to court.
The Appellate Court reasoned that a potential intervenor could be prejudiced by a holding that an action is brought once service of process had been made. “To hold that an employee may give notice of an action before service has been made on a defendant and returned to court would allow a plaintiff to thwart the purposes of § 31-293. In civil actions, a return day may be set up to two months after the date of process. General Statutes § 52-48 (b).
Although we recognize the Appellate Court’s legitimate concerns, we refrain from imposing the additional requirement that service must be returned to court before an action is considered “brought.” Rather, we adopt the suggestion proffered by the amicus curiae in its brief to this court to permit late intervention by a potential intervenor who can make a showing of actual prejudice arising out of the receipt of notice prior to the return of service to the court. A party who brings a third party action and properly notifies his or her employer of such action pursuant to § 31-293 (a) ordinarily will be permitted to pursue this action without the intervention of the employer if the employer fails to comply with the thirty day limit for intervening. If, however, the employee purposefully manipulates the time periods provided in §§ 31-293, 52-46a and 52-48 (b) in order to create a situation in which an employer cannot intervene within thirty days because the action is returned to court after the expiration of the thirty days, the employee will not be permitted to claim that the employer’s right to intervene has abated. Provided that the employee has furnished proper notice in accordance with § 31-293 (a), it is the employer’s responsibility to inquire whether an action has been returned to court and has been assigned a docket number so that it can intervene. In our view, this construction of the requirements of § 31-293 (a) adequately furthers the goal of the statute, namely, to “[protect] an employer by allowing the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor ... by becoming an intervening plaintiff in the employee’s cause of action.” Durniak v. August Winter & Sons, Inc., supra, 222 Conn. 779.
Furthermore, the language of § 31-293 (a) does not indicate that service must have been completed before notice can be sent. Rather, the statute indicates that a plaintiff must “immediately notify the [employer], in writing ... of the action and of the name of the court to which the writ is returnable . . . .” That is precisely what the plaintiff did in this case. She notified Whittaker immediately of the action against the defendant and the name of the court to which the writ would be returned. In the absence of any resulting prejudice to Whittaker, it had thirty days to intervene. Failing to do so, its right of action against the defendant abated.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to
In this opinion the other justices concurred.
General Statutes § 31-293 provides in relevant part: “Liability of third persons to employer and employee. ... (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. ...” (Emphasis added.)
We note that on July 1,1993, § 31-293 (a) was amended with the addition of, inter alia, the following sentence: “Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from his employer or its workers’ compensation insurance carrier pursuant to the provisions of this chapter, the employer or insurance carrier shall have a lien upon any judgment received by the employee against the
“We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988).” Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 15-16 n.1, 658 A.2d 83 (1995). Because the plaintiffs injury occurred in 1989, the amendment to § 31-293 (a) does not apply.
The notification letter provides: “In accordance with Section 31-293 of the Connecticut General Statutes, this will inform you that suit has been commenced on behalf of Barbara Rana in the above-noted matter.
“Enclosed please find copy of Writ, Summons and Complaint which has this day been forwarded to our sheriff for service on the named defendant. You will note that this action is being brought in the New London Judicial District at Norwich and has a return date of January 22, 1991.”
We granted the plaintiffs petition for certification to appeal, limited to the following issue: “In the circumstances of this case, did the plaintiffs notice to her employer comply with the requirements of General Statutes § 31-293?” Rana v. Ritacco, 232 Conn. 918, 655 A.2d 261 (1995).
Where a cause of action has been created by statute, strict compliance with the prescribed procedure is essential. See Main v. North Stonington, 127 Conn. 711, 712, 16 A.2d 356 (1940). “The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone.” DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916).
Whittaker does not dispute that it was properly notified of “the name of the court to which the writ is returnable.” General Statutes § 31-293 (a); see Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538.
General Statutes § 52-45a provides: “Commencement of civil actions. Contents and signature of process. Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”
We have held that there is no distinction between “commencing” and “bringing” an action. Lacasse v. Burns, 214 Conn. 464, 475-76, 572 A.2d 357 (1990).
Practice Book § 49 provides in relevant part: “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. . . .”
We note that the Appellate Court mistakenly applied its own rule because even under its view of the requirements for an action to be brought, the plaintiff satisfactorily notified Whittaker that an action had been brought. The plaintiff caused process to be served on the defendant on December 27, 1990, which was returned on January 4, 1991. Notice to Whittaker was given on January 7,1991. Therefore, the plaintiff broughtthe action according to the Appellate Court’s own rule before she notified Whittaker.
General Statutes § 52-46a provides: “Return of process. Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”
We note that § 52-46a was complied with in this case because the complaint was returned to the court on January 4, 1991, which was well before the required six days prior to the stated return date of January 22, 1991.
General Statutes § 52^8 provides in relevant part: “Return day of process. . . .
“(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”
General Statutes § 52-46 provides: “Time for service. Civil process, if returnable to the supreme court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the superior court, at least twelve days, inclusive, before such day.”
See footnote 9.
See footnote 2.