Barker v. All Roofs by Dominic ( 2021 )

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CHRISTOPHER BARKER v. ALL
ROOFS BY DOMINIC ET AL.
(SC 20196)
Robinson, C. J., and Palmer, McDonald, Kahn,
Ecker, Vertefeuille and Elgo, Js.*
Syllabus
Pursuant to a provision of the Workers’ Compensation Act (§ 31-291),
‘‘[w]hen any principal employer procures any work to be done wholly
or in part for him by a contractor, or through him by a subcontractor,
and the work so procured to be done is a part or process in the trade
or business of such principal employer, and is performed in, on or about
premises under his control, such principal employer shall be liable to
pay all compensation . . . to the same extent as if the work were done
without the intervention of such contractor or subcontractor.’’
The defendants city of Bridgeport and its insurer, P Co., appealed from
the decision of the Compensation Review Board, which affirmed the
decision of the Workers’ Compensation Commissioner, who had found
that the city was the plaintiff’s principal employer and, therefore, liable
for the plaintiff’s workers’ compensation benefits. The plaintiff had been
employed by H Co., an uninsured subcontractor of the city, when he
was injured while doing repair work to the roof of the city’s transfer
facility. The plaintiff sought workers’ compensation benefits, and, fol-
lowing a hearing, the commissioner found that, because he was an
employee of an uninsured subcontractor when he suffered his compensa-
ble injury, the Second Injury Fund was statutorily (§ 31-355) required
to pay his workers’ compensation benefits. The Second Injury Fund
subsequently contested liability on the ground that, pursuant to § 31-
291, the city was the plaintiff’s principal employer when he suffered his
injury and, therefore, was required to pay the workers’ compensation
benefits owed to him. Following additional hearings, the commissioner
determined that, under Massolini v. Driscoll (114 Conn. 546), a munici-
pality can be held liable as a principal employer under § 31-291, that
the city had a statutory (§ 7-148) duty to manage, maintain, and repair
its property, including the transfer facility, and that repairing the transfer
facility’s roof was a part or process in the city’s trade or business within
the meaning of § 31-291. Accordingly, the commissioner found that the
city was the plaintiff’s principal employer and ordered the city and P
Co. to pay his workers’ compensation benefits. The city and P Co.
appealed to the board, which affirmed the commissioner’s decision.
Thereafter, the city and P Co. appealed to the Appellate Court, which
upheld the board’s decision. On the granting of certification, the city
and P Co. appealed to this court. Held that the Appellate Court correctly
concluded that, under § 31-291, the city was liable as the plaintiff’s
principal employer for workers’ compensation benefits to which he was
entitled as a result of the injuries he sustained repairing the roof of the
city’s transfer facility while employed by the city’s uninsured subcontrac-
tor: whether an uninsured contractor’s or subcontractor’s work is a part
or process in the trade or business of the principal employer under
§ 31-291 is a fact specific determination to be made in light of certain
nondispositive factors, including the employer’s legally defined powers
and obligations, the complexity of the work being performed and the
degree of specialization required, whether the employer supplied the
tools or materials or oversaw the work, and whether the work was of
such a character that it ordinarily would be performed by the employer’s
own employees or was an otherwise essential part in the maintenance
or operation of the employer’s business; considering the relevant factors
in light of the record, as well as § 31-291’s broader remedial purpose of
preventing employers from denying workers full protection under the
workers’ compensation scheme by simply hiring uninsured contractors
or subcontractors, this court concluded that the commissioner reason-
ably determined that the repair of the transfer facility’s roof was a part
or process in the city’s trade or business, as it was undisputed that the
city was responsible pursuant to § 7-148 to maintain and repair its public
buildings, the roof repairs at issue were not especially complex and did
not demand specialized skills, and, although the city did not employ its
own roofers for financial reasons despite employing a variety of other
tradespeople to maintain and repair city property, the roof repair fell
within the nature and scope of the maintenance and repair work ordi-
narily performed by city employees; moreover, this court declined the
city and P Co.’s invitation to overrule Massolini insofar as it applies
principal employer liability to municipalities, as that case’s holding has,
over the past eighty years, become embedded in Connecticut worker’s
compensation law, and the city and P Co. did not identify any ambiguity
in the statutory scheme or any legislative history suggesting that the
legislature intended to abrogate this court’s holding in Massolini or to
change the standards of principal employer liability through the creation
of the Second Injury Fund, a primary purpose of which is, instead, to
act as a payer of last resort when an employer is unable to pay.
(Three justices dissenting in one opinion)
Argued October 22, 2019—officially released August 13, 2020**
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Third District determining
that the defendant city of Bridgeport was the plaintiff’s
principal employer, brought to the Compensation Review
Board, which affirmed the commissioner’s decision;
thereafter, the defendant city of Bridgeport et al.
appealed to the Appellate Court, Sheldon, Bright and
Harper, Js., which affirmed the board’s decision, and
the defendant city of Bridgeport et al., on the granting
of certification, appealed to this court. Affirmed.
Joseph J. Passaretti, Jr., with whom, on the brief,
was Amanda A. Hakala, for the appellants (defendant
city of Bridgeport et al.).
Lisa Guttenberg Weiss, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Philip M. Schulz, assistant attorney gen-
eral, for the appellee (Second Injury Fund).
Opinion
ECKER, J. The sole issue in this certified appeal is
whether, under the Workers’ Compensation Act, Gen-
eral Statutes § 31-291,1 a municipality is the ‘‘principal
employer’’ of an employee of an uninsured roofing sub-
contractor injured while repairing a municipal building.
The defendants city of Bridgeport (city) and PMA Insur-
ance Company2 contend that the city is not a principal
employer under the statute because it is not in the
‘‘trade or business’’ of roof repair. The Second Injury
Fund (fund) responds that the city is in the ‘‘trade or
business’’ of maintaining and repairing municipal build-
ings and facilities, and, therefore, the Appellate Court
properly affirmed the judgment of the Compensation
Review Board (board), which found that the city was
liable for the payment of the workers’ compensation
benefits of the plaintiff, Christopher Barker, as his prin-
cipal employer. We agree with the fund and affirm the
judgment of the Appellate Court.
The relevant facts and procedural history are not in
dispute. In March, 2000, the city hired the defendant
All Roofs by Dominic (All Roofs) to do repair work on
the roof of the city’s transfer facility located at 475
Asylum Street. All Roofs hired the defendant Howard
Adams d/b/a Howie’s Roofing (Howie’s Roofing) as a
subcontractor. On June 29, 2000, the plaintiff, an employee
of Howie’s Roofing, was injured in the course and scope
of his employment when he fell from the roof under
repair. After his fall, the plaintiff sought workers’ com-
pensation benefits from Howie’s Roofing, All Roofs,
and the city. Neither Howie’s Roofing nor All Roofs
carried a valid workers’ compensation insurance policy.
A formal hearing was held before the Workers’ Com-
pensation Commission. On January 5, 2005, the Work-
ers’ Compensation Commissioner for the Fourth Dis-
trict determined that the plaintiff was an employee of
Howie’s Roofing when he suffered his work-related
injury. Because Howie’s Roofing was uninsured, that
finding required the fund to pay the workers’ compensa-
tion benefits owed to the plaintiff pursuant to General
Statutes § 31-355.3 The fund subsequently contested lia-
bility on the ground that, under § 31-291, the city was
the principal employer of the plaintiff and, therefore,
was required to pay the workers’ compensation benefits
owed to him.
Additional hearings were conducted before the Work-
ers’ Compensation Commission on November 19, 2015,
and February 23, 2016, to determine the city’s principal
employer liability. The city conceded that it had hired
All Roofs to perform work on the transfer facility and
that the plaintiff’s injury took place on municipal prop-
erty under the city’s control. The city denied, however,
that the roofing work performed by All Roofs was a
part or process in the city’s trade or business, which
is a prerequisite to establish principal employer liability
under § 31-291. John F. Cottell, Jr., Deputy Director of
Public Facilities for the city, testified that it was the
responsibility of the public facilities department to
maintain city-owned buildings, but he also testified that
the city did not employ a roofer because the need was
not extensive enough to justify the cost of employing
one on a full-time basis.
In his written finding and orders, the Workers’ Com-
pensation Commissioner for the Third District (commis-
sioner) determined that, under Massolini v. Driscoll,
114 Conn. 546, 551–52, 159 A. 480 (1932), a municipal-
ity can be liable as a principal employer under § 31-291.
The commissioner also determined that, pursuant to
General Statutes § 7-148,4 the city has a statutory duty
to manage, maintain, repair, and control its property,
including its transfer facility. In addition, the commis-
sioner concluded that the work of repairing the roof of
the transfer facility was a part or process in the city’s
trade or business. The commissioner found that the city
was the plaintiff’s principal employer and ordered the
defendants to pay the workers’ compensation benefits
to which the plaintiff was entitled. The defendants filed
a motion to correct and a motion for articulation, both
of which the commissioner denied.
The defendants appealed to the board, which affirmed
the commissioner’s decision. The defendants timely
appealed from the board’s decision to the Appellate
Court. The Appellate Court affirmed the decision of the
board. Barker v. All Roofs by Dominic, 183 Conn. App.
612, 623, 193 A.3d 693 (2018). We granted the defen-
dants’ petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court [correctly]
conclude that, under . . . § 31-291, as construed by
Massolini v. Driscoll, [supra, 114 Conn. 546], the . . .
city . . . was liable for workers’ compensation bene-
fits as the principal employer of a worker hired by an
uninsured subcontractor to repair the roof of a building
owned by the city?’’ Barker v. All Roofs by Dominic,
330 Conn. 925, 926, 194 A.3d 292 (2018).
The defendants contend that roof repair is not a part
or process in the city’s trade or business under § 31-
291, as construed by Massolini. Alternatively, the defen-
dants argue that Massolini is no longer good law
because (1) it utilizes an outdated definition of ‘‘busi-
ness’’ under the principal employer statute, and (2) the
subsequent creation of the fund has ‘‘displaced’’ Massol-
ini by providing a ‘‘logical alternative’’ to the holding
in that case. Lastly, the defendants argue that the impo-
sition of principal employer liability against a municipal-
ity violates General Statutes § 31-286a (c).5 In response,
the fund argues that (1) Massolini remains controlling
law, notwithstanding the subsequent creation of the
fund, (2) pursuant to § 31-291, as construed by Massol-
ini, the city is liable for the payment of workers’ com-
pensation benefits to the plaintiff as his principal
employer, and (3) § 31-286a (c) has no application on
this record.
Our standard of review applicable to workers’ com-
pensation appeals is well-settled. ‘‘The conclusions
drawn by [the commissioner] from the facts found must
stand unless they result from an incorrect application
of the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . . It is
well established that [a]lthough not dispositive, we
accord great weight to the construction given to the
workers’ compensation statutes by the commissioner
and [the] board.’’ (Internal quotation marks omitted.)
Marandino v. Prometheus Pharmacy, 294 Conn. 564,
572, 986 A.2d 1023 (2010). ‘‘Our Workers’ Compensation
Act indisputably is a remedial statute that should be
construed generously to accomplish its purpose.’’ Dris-
coll v. General Nutrition Corp., 252 Conn. 215, 220, 752
A.2d 1069 (2000).
The principal employer statute provides in relevant
part: ‘‘When any principal employer procures any work
to be done wholly or in part for him by a contractor,
or through him by a subcontractor, and the work so
procured to be done is a part or process in the trade
or business of such principal employer, and is per-
formed in, on or about premises under his control, such
principal employer shall be liable to pay all compensa-
tion under this chapter to the same extent as if the
work were done without the intervention of such con-
tractor or subcontractor. . . .’’ General Statutes § 31-
291. The ‘‘underlying purpose’’ of the statute is to
impose liability in ‘‘those situations [in which injurious]
conditions might be assumed to be largely within the
control or observation of the principal employer.’’ Wil-
son v. Largay Brewing Co., 125 Conn. 109, 112, 3 A.2d
668 (1939). Because ‘‘[m]ost compensable injuries are
due to conditions of employment the danger from which
could be prevented or minimized by sufficient oversight
or control’’; id.; the statute provides an incentive for
the principal employer to provide a safe working envi-
ronment for the contractors and subcontractors that
carry out any part or process in its trade or business.
See Sgueglia v. Milne Construction Co., 212 Conn. 427,
433, 562 A.2d 505 (1989) (‘‘[t]he purpose of § 31-291 is
to protect employees of minor contractors against the
possible irresponsibility of their immediate employers,
by making the principal employer who has general con-
trol of the business in hand liable as if he had directly
employed all who work [in] any part of the business
[that] he has undertaken to carry on’’ (internal quotation
marks omitted)); Johnson v. Mortenson, 110 Conn. 221,
225, 147 A. 705 (1929) (principal employer statute
‘‘afford[s] full protection to work[ers], by preventing
the possibility of defeating the [Workers’ Compensation
Act] by hiring irresponsible contractors or subcontrac-
tors to carry on a part of the employer’s work’’).
The relevant portion of the principal employer statute
has remained unchanged since the enactment of our
original Workers’ Compensation Act in 1913. See Public
Acts 1913, c. 138, pt. B, § 5. The controlling decisional
law is similarly long-standing. Since 1927, we consis-
tently have applied a three-part test to determine princi-
pal employer liability under the Workers’ Compensation
Act. ‘‘To render a principal employer liable, it is clear
[that] this statute requires (1) that the relation of princi-
pal employer and contractor must exist in work wholly
or in part for the former, (2) that the work must be
in, on or about premises controlled by the principal
employer, and (3) that the work be a part or process
in the trade or business of the principal employer.’’
Crane v. Peach Bros., 106 Conn. 110, 113, 137 A. 15(1927). The third prong of this test—the only one at
issue in the present case—frequently is the most diffi-
cult to apply. See, e.g., Fox v. Fafnir Bearing Co., 107
Conn. 189, 192–95, 139 A. 778 (1928). The question of
whether the work at issue is included within an employ-
er’s trade or business largely is one ‘‘of degree and fact.’’
Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148(1952). Fortunately, however, our precedent supplies
‘‘a number of cases [in which] we have been called [on]
to decide whether . . . [on] their particular facts they
fall within the provisions of the statute, and they afford
a valuable basis for arriving at a general conception of
its application.’’ King v. Palmer, 129 Conn. 636, 639–40,
30 A.2d 549 (1943).
Massolini v. Driscoll, supra, 114 Conn. 546, is one
such case, and it featured prominently in the present
dispute to help guide the analysis of the commissioner,
the board, and the Appellate Court, as well as in the
parties’ arguments before this court. In Massolini, the
city of Hartford hired a contractor to provide a team
of horses and a driver to collect ashes and rubbish
left out by the public for removal. Id., 548. The driver
employed by the contractor was fatally injured while
tending to the horses’ shoes, precipitating a workers’
compensation claim. Id., 549. As in the present case,
the issue in Massolini was whether the municipality
was the employee’s principal employer under the stat-
ute, and, as here, this question hinged on whether the
work performed by the employee was a part or process
in the city’s trade or business. We held that, for a munici-
pal corporation, the term ‘‘business’’ means ‘‘the con-
duct of the usual affairs of the corporation, and such
as commonly engage the attention of its officers.’’ Id.,
552. We noted that Hartford was authorized to remove
ashes and rubbish as part of its police powers; id.,551–52; and held that such work was a ‘‘business’’ of
the city within the meaning of the Workers’ Compensa-
tion Act. Id., 552. Because the driver’s work on the
horses’ shoes was ‘‘incidental to and in furtherance of
the operations involved in [that] business of [Hartford],
a valid claim for compensation [had] been established
against [Hartford].’’ Id., 553.6
We agree with the Appellate Court, the board, and
the commissioner that Massolini provides useful guid-
ance in the present case. The plaintiff in the present case
was employed by one of the city’s subcontractors to dis-
charge an obligation imposed by law on the city itself,
namely, the maintenance and repair of municipal build-
ings. As the commissioner found, and as no party dis-
putes, the city had a responsibility to manage, maintain,
and repair its public buildings, including its transfer
facility, pursuant to § 7-148 (c) (6) (A) (i). See footnote
4 of this opinion. This conclusion is further supported
by Cottell’s testimony that it was the responsibility of
the public facilities department to maintain city-owned
buildings. The commissioner reasonably determined
that maintenance of the transfer facility, including the
repair of the facility’s roof, was among ‘‘the usual affairs
of the corporation, and such as commonly engage the
attention of its officers’’ and, therefore, is a part or
process in the city’s business. Massolini v. Driscoll, 114
Conn. 552. Other states with similar ‘‘trade or business’’
language in their principal employer statutes have reached
the same conclusion. See Rodriquez v. John Russell Con-
struction, 16 Kan. App. 2d 269, 275, 826 P.2d 515 (1991)
(‘‘[r]oof repair was essential to protect the [public hous-
ing complex] and ensure that it remained habitable,’’
and worker injured while doing so was statutory employee
of municipality under workers’ compensation statute);
Ford v. Richmond, 239 Va. 664, 665, 669, 391 S.E.2d
270 (1990) (worker injured while repairing roof on city
reservoir was statutory employee7 of city under work-
ers’ compensation statute).8
We do not agree with the dissent’s prediction that
continuing9 to give consideration to the legally defined
powers and obligations of a city in determining its trade
or business would ‘‘render a municipality the workers’
compensation guarantor of virtually every employee of
an independent contractor engaged by the city.’’ As we
explain elsewhere in this opinion, other factors, such
as the complexity of the work in question; Battistelli
v. Connohio, Inc., 138 Conn. 646, 649, 88 A.2d 372(1952); or the scale of the undertaking, as in Grenier
v. Grenier, supra, 138 Conn. 569; see footnote 12 of
this opinion; may place work outside of the trade or
business of a municipality, even if that work falls gener-
ally within the city’s legally defined powers and obliga-
tions. Importantly, a city may protect itself against the
financial loss of a determination that it is the principal
employer of an injured worker by taking the simple
step of ensuring that any independent contractor it hires
carries workers’ compensation insurance, as the city is
mandated to do by § 31-286a (a). See footnote 5 of this
opinion. If a city takes that precaution, and if it is found
liable to pay workers’ compensation benefits as a princi-
pal employer, it may recover any sums that it pays as
a result from the independent contractor. See Sgueglia
v. Milne Construction Co., supra, 212 Conn. 433–34
(between principal employer and subcontractor, latter
is primarily liable); Johnson v. Mortenson, supra, 110
Conn. 228 (because liability of immediate employers is
primary and liability of principal employers is second-
ary, principal employer may recover sums paid to
injured worker from immediate employer).
The defendants contend that roof repair is not a part
or process in the city’s business because the city did
not employ any roofers. Although relevant to the deter-
mination of an employer’s trade or business, this factor
is not dispositive. We have held that, ‘‘[i]f the work is
of such a character that it ordinarily or appropriately
would be performed by the principal employer’s own
employees in the prosecution of its business, or as an
essential part in the maintenance thereof, it is a part
or process of his work.’’ King v. Palmer, supra, 129
Conn. 641. We have made it clear that ‘‘no one exclusive
test can be set up and that each case must be determined
on its own facts . . . .’’ Crisanti v. Cremo Brewing
Co., 136 Conn. 529, 532, 72 A.2d 655 (1950). A finding
that the work in question ordinarily or appropriately is
performed by the principal employer’s own employees
is sufficient to establish principal employer liability;
see, e.g., Kasowitz v. Mutual Construction Co., 154
Conn. 607, 613–14, 228 A.2d 149 (1967); but it is not a
prerequisite to that liability. See Mancini v. Bureau of
Public Works, 167 Conn. 189, 196, 355 A.2d 32 (1974)
(observing that ‘‘this test is not necessarily conclusive’’).
Pacileo v. Morganti, Inc., 10 Conn. App. 261, 522
A.2d 841 (1987), is instructive on this point. In Pacileo,
the Appellate Court considered whether the defendant,
a general contractor hired to oversee the city of New
Haven’s city hall and library construction project, was
the principal employer of the plaintiff, an ironworker
injured on the work site. Id., 262. The Appellate Court
noted that ‘‘the defendant’s business, as the general
contractor, was to oversee and implement the construc-
tion of the city hall library complex. . . . A necessary
and expected part of that construction was the laying
of steel rods for the pouring of concrete. Ironworkers
generally lay steel rods. Since none of the individuals
directly employed by [the defendant was] qualified to
perform the job of ironworker . . . the utilization of
ironworkers such as the plaintiff was a part or process
of the defendant’s trade or business.’’ (Internal quota-
tion marks omitted.) Id., 264; see also Adams v. Jodar
Blasting, Inc., No. 1943, CRB 2-93-12 (January 17, 1996)
(home construction business was principal employer
of employee of contractor who was hired to blast rock
at construction site, even though principal employer
did not have any employees qualified to perform such
work). Therefore, the defendant general contractor was
the employee’s principal employer under § 31-291, even
though it ‘‘did not directly employ any [ironworkers]’’
or ‘‘any . . . employees qualified to perform the job of
[ironworkers].’’ Pacileo v. Morganti, Inc., supra, 263;
see also Kasowitz v. Mutual Construction Co., supra,
154 Conn. 608–609, 614 (The court held that the defen-
dant general contractor was the primary employer of
the plaintiff, who was an employee of a glass company
hired to install windows, because the defendant was
obligated by contract to ‘‘complete . . . construction
. . . in all respects, including the glass work. All of
this was part of its business. It chose to enter into
subcontracts for certain phases of the work, including
the glass work, instead of hiring glaziers to do the work
at the appropriate time.’’).
The analogy to a general contractor is apt.10 Just as
the defendant’s business in Pacileo was to ‘‘oversee and
implement’’ a construction project; Pacileo v. Morganti,
Inc., supra, 10 Conn. App. 264; in the present case,
the city’s business includes, among other things, the
maintenance and repair of its buildings and facilities,
including the transfer facility. See General Statutes § 7-
148 (c) (6) (A) (i). We do not say that all such repairs,
regardless of their complexity and the level of special-
ization required, automatically must be considered to
be part of the business of a large municipality such as
Bridgeport. Indeed, we have explained that the com-
plexity of the work in question is a relevant factor for
determining principal employer liability under § 31-291.
See Battistelli v. Connohio, Inc., supra, 138 Conn. 649(‘‘it is obvious that the intricate character of the job
and the special skill required put it well outside of the
capabilities of the defendants’ ordinary employees’’).
On the present record, however, we have no reason to
disagree with the conclusion of the commissioner that
roof repair is a ‘‘necessary and expected part’’ of the
routine building maintenance of the city’s transfer facil-
ity. Pacileo v. Morganti, Inc., supra, 264. It does not
appear that the roof repairs at issue were so complex
or demanded such specialized skills that they fell out-
side of the business of the city, which employs a variety
of tradespeople—including electricians, carpenters,
plumbers, painters, and masons—but which elected not
to employ its own roofers for financial reasons.11
Because the city chose not to employ roofers of its
own, it was required to contract for roofing services,
making the utilization of roofers, such as the plaintiff,
a part or process in the city’s business of maintaining
and repairing the transfer facility.
Predicating principal employer liability on the actual
employment of workers who perform the type of work
at issue also would be inconsistent with the remedial
purpose of § 31-291. As we previously have stated, ‘‘the
purpose of the principal employer provision in § 31-291
is to afford full protection to work[ers], by preventing
the possibility of defeating the [Workers’ Compensation
Act] by hiring irresponsible contractors or subcontrac-
tors to carry on a part of the [principal] employer’s
work.’’ (Internal quotation marks omitted.) Gonzalez
v. O & G Industries, Inc., 322 Conn. 291, 307, 140 A.3d
950 (2016). The statute ‘‘protect[s] employees of minor
contractors against the possible irresponsibility of their
immediate employers. . . . Otherwise, [§ 31-291], and,
indeed, the whole policy of the [Workers’] Compensa-
tion Act, might be evaded by the device of the owner
parceling out the work of construction among a number
of separate [uninsured] contractors . . . .’’ (Internal
quotation marks omitted.) Johnson v. Mortenson,
supra, 110 Conn. 226. The defendants’ interpretation of
the statute would allow employers to do precisely what
the statute was enacted to prohibit—avoid liability
under the Workers’ Compensation Act by choosing to
hire contractors rather than employees to perform cer-
tain tasks.
The defendants contend that their position finds sup-
port in Fox v. Fafnir Bearing Co., supra, 107 Conn.
189, the holding of which they say implies that the
‘‘repair or alteration’’ of a building is not a part or
process in an employer’s trade or business. The defen-
dants construe our holding in Fox too broadly. In that
case, the plaintiff, Richard Fox, was an employee of a
window washing company that the defendant, Fafnir
Bearing Company (Fafnir), had hired to wash the win-
dows in its factory. Id., 190. Fafnir was ‘‘in the business
of manufacturing ball bearings,’’ but ‘‘it was necessary
to have the windows washed, as a clean and attractive
condition of the factory was an advertising asset of the
corporation.’’ Id., 191. On appeal, Fafnir claimed that
it was not Fox’ principal employer because ‘‘the wash-
ing of windows by [Fox] was not ‘a part or process in
[its] trade or business . . . .’ ’’ Id., 192. We disagreed,
reasoning that ‘‘[a]ny work which was an essential part
of the maintenance and operation of its factory was a
part of its ‘trade or business,’ though not a process in
the actual work of manufacturing ball bearings. . . .
[Fox’] work of window-washing was work which had
to do with the maintenance of the factory buildings in
good condition for the manufacturing processes there
conducted, and which could fairly be said to be essential
for that purpose—work similar in character to that of
scrubbing the floors, cleaning the offices and ordinary
janitor work. Such work is customarily done by regular
employees in the daily routine of their duties in the
factory. It is clearly distinguishable from work done in
connection with the repair or alteration of the factory
buildings. It is a part of the work of keeping the employ-
er’s factory in running condition, and therefore a part
of its ‘trade or business’ though not directly connected
with any manufacturing process. To limit the applica-
tion of [the principal employer statute] to work done
in the actual process of manufacture would be to adopt
a construction not required or permitted by the lan-
guage of the [Workers’ Compensation] Act, and entirely
at variance with our settled policy of construing the
[Workers’] Compensation Act broadly in order to effec-
tuate its purpose.’’ Id., 195–96.
Although the thrust of the analysis in Fox supports
the conclusion we reach here, the defendants contend
that the language distinguishing ordinary maintenance
work, such as washing windows, from ‘‘work done in
connection with the repair or alteration of the factory
buildings’’; id., 195; requires a different outcome in the
present case because it involves a roof repair. The
defendants’ position, however, overlooks the most fun-
damental observation made in Fox, which is that ‘‘[n]o
general rule [for determining the scope of the employ-
er’s trade or business for purposes of principal
employer liability] is deducible from the authorities,
and it is often a matter of extreme difficulty to decide
whether the work in a given case falls with the designa-
tion of the statute. It is in each case largely a question
of degree and of fact . . . .’’ Id., 194. A categorical
distinction between maintenance and repair is not help-
ful in this context, and we do not read Fox to establish
such a distinction as a doctrinal matter. The determina-
tion in any particular case as to whether the nature and
extent of the work being performed by the plaintiff
should be deemed a part of the defendant’s business
operations or outside of those business operations will
depend on the specific facts of the case viewed in light
of the factors previously discussed in this opinion. In the
present case, the commissioner reasonably concluded
that the repair of the transfer facility’s roof was a part
or process in the city’s business on the basis of the
evidence concerning the city’s business operations, its
statutory responsibilities, and the nature and scope of
the maintenance and repair work ordinarily performed
by city employees.12
The defendants contend, in a similar vein, that roof
repair is not a part or process in the city’s trade or
business because the city did not supply the plaintiff
with tools or materials or oversee the plaintiff’s work.
This argument suffers from the same defect as the previ-
ous one. Like the hiring of employees, the source of
the tools or materials used for the work, although rele-
vant to the principal employer inquiry, is not a disposi-
tive consideration. We have upheld findings of principal
employer liability without making reference to which
party supplied tools and materials or oversaw the work
in question. See Mancini v. Bureau of Public Works,
supra, 167 Conn. 193, 196–97 (finding no error in trial
court’s directions to jury on part or process element
without making reference to whether defendant sup-
plied tools or materials or directly oversaw work); Fox
v. Fafnir Bearing Co., supra, 107 Conn. 194–96 (uphold-
ing commissioner’s conclusion that defendant was prin-
cipal employer without making reference to whether
defendant supplied tools or materials or directly over-
saw work); see also Hebert v. RWA, Inc., 48 Conn. App.
449, 454–55, 709 A.2d 1149 (upholding commissioner’s
finding that work was part or process in trade or busi-
ness of principal employer without making reference
to whether principal employer supplied tools and mate-
rials or directly oversaw work), cert. denied, 246 Conn.
901, 717 A.2d 239 (1998); Pacileo v. Morganti, Inc.,
supra, 10 Conn. App. 264–65 (no genuine issue of mate-
rial fact as to whether defendant was principal
employer, although no reference was made to whether
defendant supplied tools or materials or directly over-
saw work).13
In the alternative, the defendants ask us to overrule
Massolini insofar as it applies principal employer liabil-
ity to municipalities. The defendants argue that the defi-
nition of ‘‘business’’ in Massolini is outdated and cite
a 2003 dictionary to support their claim that the term
‘‘business’’ means a ‘‘commercial or mercantile activity
engaged in as a means of livelihood: trade, line,’’ a
‘‘commercial or sometimes an industrial enterprise,’’ or
‘‘dealings or transactions [especially] of an economic
nature . . . .’’ Merriam-Webster’s Collegiate Diction-
ary (11th Ed. 2003) p. 167. We decline to overrule Mas-
solini for two reasons. First, ‘‘[w]hen a term is not
defined in a statute, we begin with the assumption that
the legislature intended the word to carry its ordinary
meaning, as evidenced in dictionaries in print at the
time the statute was enacted.’’ (Emphasis added.)
Maturo v. State Employees Retirement Commission,
326 Conn. 160, 176, 162 A.3d 706 (2017); see also San-
difer v. United States Steel Corp., 571 U.S. 220, 227, 134
S. Ct. 870, 187 L. Ed. 2d 729 (2014) (‘‘[i]t is a fundamental
canon of statutory construction that, unless otherwise
defined, words will be interpreted as taking their ordi-
nary, contemporary, common meaning’’ (emphasis
added; internal quotation marks omitted)).14 We attri-
bute no persuasive value to the defendants’ preferred
definition of business, taken from a dictionary pub-
lished ninety years after the enactment of the principal
employer statute.
Second, our adherence to this court’s holding in Mas-
solini gains additional force from the doctrine of stare
decisis. ‘‘This court has repeatedly acknowledged the
significance of stare decisis to our system of jurispru-
dence because it gives stability and continuity to our
case law. . . . The doctrine of stare decisis counsels
that a court should not overrule its earlier decisions
unless the most cogent reasons and inescapable logic
require it.’’ (Citation omitted; internal quotation marks
omitted.) State v. Salamon, 287 Conn. 509, 519, 949
A.2d 1092 (2008). ‘‘Moreover, [i]n evaluating the force
of stare decisis, our case law dictates that we should
be especially wary of overturning a decision that
involves the construction of a statute. . . . When we
construe a statute, we act not as plenary lawgivers but
as surrogates for another policy maker, [that is] the
legislature. In our role as surrogates, our only responsi-
bility is to determine what the legislature, within consti-
tutional limits, intended to do.’’ (Internal quotation
marks omitted.) Id., 519–20. The Workers’ Compensa-
tion Act includes municipalities within the definition of
employer; General Statutes § 31-275 (10) (‘‘ ‘[e]mployer’
means any person, corporation, limited liability com-
pany, firm, partnership, voluntary association, joint
stock association, the state and any public corporation
within the state using the services of one or more
employees for pay’’ (emphasis added)); and the term
‘‘principal employer’’ has been construed to encompass
municipalities for more than eighty years.15 The holding
and implications of Massolini and its progeny have by
now become embedded as part of our workers’ compen-
sation law, and we are unwilling to overturn established
doctrine and upset settled expectations under these
circumstances.
The defendants seek to strengthen their argument in
favor of doctrinal modification by asserting that the
1959 expansion of the fund has ‘‘displaced’’ Massolini
because the availability of the fund has eliminated the
need to hold municipalities liable as principal employ-
ers. The defendants point out that the fund did not
exist when Massolini was decided and suggest that
Massolini would have been decided differently if the
fund had existed at the time. They hypothesize that,
because the existence of the fund means that the injured
worker is no longer left uncompensated in these circum-
stances—that is, the fund would be obligated to pay
the plaintiff’s compensation award if the city is not
found to be the plaintiff’s principal employer—it is no
longer necessary to apply the principal employer statute
to the city under Massolini. We are not persuaded.
To begin with, nothing in the language of the statute
establishing the fund suggests a legislative intent to
abrogate Massolini or to alter the standards of principal
employer liability. The legislature created the fund in
1945 to encourage employers to hire employees with
preexisting disabilities or injuries. See Public Acts 1945,
No. 188; Cece v. Felix Industries, Inc., 248 Conn. 457,
462–63, 728 A.2d 505 (1999). In 1959, the legislature
expanded the role of the fund by requiring it to pay an
award of compensation whenever an injured employ-
ee’s employer or the employer’s insurer did not pay.
See Public Acts 1959, No. 580, § 13. Today, this provision
is codified at § 31-355.16 Section 31-355 is silent on the
matter of principal employer liability. The defendants
have failed to identify any ambiguity in the relevant
statutes or statutory scheme that would prompt us to
consider their argument for modification; nor have they
provided any evidence suggesting that the legislature
contemplated making any change to the meaning or
scope of principal employer liability or otherwise reliev-
ing municipalities of principal employer liability
through the fund.
The defendants’ argument also misapprehends the
role of the fund in our workers’ compensation scheme.
A primary purpose of the fund is to act as a backstop,
ensuring that injured workers receive compensation
when the employer has ‘‘failed, neglected, refused, or
is unable to pay . . . .’’ General Statutes § 31-155 (b).
The fund is a payer of last resort; its existence does
not relieve employers or principal employers of their
obligations to pay under the Workers’ Compensation
Act. See General Statutes § 31-355 (c) (‘‘[t]he employer
and the insurer, if any, shall be liable to the state for
any payments made out of the fund’’).
Finally, the defendants argue that the commissioner
violated § 31-286a (c) by finding the city liable as the
plaintiff’s principal employer ‘‘solely because’’ it had
not met its statutory obligation under § 31-286a (a) to
ensure that its contractors were in compliance with
the workers’ compensation insurance requirements. We
declined to grant certification on this issue and do not
address the claim. See, e.g., Bellemare v. Wachovia
Mortgage Corp., 284 Conn. 193, 195 n.2, 931 A.2d 916(2007).
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, McDONALD and VERTE-
FEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
Kahn and Ecker. Thereafter, Justice Vertefeuille and Judge Elgo were added
to the panel and have read the briefs and appendices, and listened to a
recording of the oral argument prior to participating in this decision.
** August 13, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 31-291 provides in relevant part: ‘‘When any principal
employer procures any work to be done wholly or in part for him by a
contractor, or through him by a subcontractor, and the work so procured
to be done is a part or process in the trade or business of such principal
employer, and is performed in, on or about premises under his control, such
principal employer shall be liable to pay all compensation under this chapter
to the same extent as if the work were done without the intervention of
such contractor or subcontractor. . . .’’
2
The defendants in the matter before the Workers’ Compensation Commis-
sion were (1) the city, (2) the city’s insurer, PMA Insurance Company, (3)
the city’s contractor, All Roofs by Dominic, and (4) Howard Adams d/b/a
Howie’s Roofing, the city’s subcontractor and the employer of the plaintiff,
Christopher Barker. After the Workers’ Compensation Commissioner deter-
mined that the plaintiff’s claim was compensable under the Workers’ Com-
pensation Act and that the plaintiff’s employer was uninsured, the Second
Injury Fund (fund) became obligated to compensate the plaintiff for his
injuries under General Statutes § 31-355 (h). See footnote 3 of this opinion.
The plaintiff did not participate in the proceedings before the Compensa-
tion Review Board or the Appellate Court, but the fund participated in
those proceedings as the appellee to defend the decision of the Workers’
Compensation Commissioner that the city, rather than the fund, was liable
for the payment of the plaintiff’s workers’ compensation benefits. The plain-
tiff likewise is not a party to the present appeal, and the fund is the appellee.
All Roofs by Dominic did not seek review of the decision of the Workers’
Compensation Commissioner and is not a party to the present appeal. All
references to the defendants hereinafter are to the city and its insurer, PMA
Insurance Company.
3
General Statutes § 31-355 provides in relevant part: ‘‘(b) When an award
of compensation has been made under the provisions of this chapter against
an employer who failed, neglected, refused or is unable to pay any type of
benefit coming due as a consequence of such award or any adjustment in
compensation required by this chapter, and whose insurer failed, neglected,
refused or is unable to pay the compensation, such compensation shall be
paid from the Second Injury Fund. . . .
***
‘‘(h) When a finding and award of compensation [have] been made against
an uninsured employer who fails to pay it, that compensation shall be paid
from the Second Injury Fund . . . .’’
4
General Statutes § 7-148 (c) (6) (A) (i) provides in relevant part: ‘‘Any
municipality shall have the power to do any of the following . . . [e]stablish,
lay out, construct, reconstruct, alter, maintain, repair, control and operate
. . . garbage and refuse disposal facilities . . . and any and all buildings
or facilities necessary or convenient for carrying on the government of the
municipality . . . .’’
5
General Statutes § 31-286a provides in relevant part: ‘‘(a) . . . [N]either
the state, or its agents, nor any political subdivision of the state, or its
agents, may enter into any contract on or after October 1, 1986, for the
construction, remodeling, refinishing, refurbishing, rehabilitation, alteration
or repair of any public works project before receiving from each of the
other parties to such contract [inter alia] sufficient evidence of compliance
with the workers’ compensation insurance and self-insurance requirements
of subsection (b) of section 31-284 . . . .
***
‘‘(c) This section shall not be construed to create any liability on the part
of the state or any political subdivision thereof to pay workers’ compensation
benefits or to indemnify the Second Injury Fund, any employer or any insurer
who pays workers’ compensation benefits. . . .’’
6
The dissent ‘‘find[s] most significant the fact that the driver in Massolini
was working alongside Hartford’s own employees at the time of his fatal
injury.’’ We respectfully disagree with this reading of Massolini. The factor
identified by the dissent was not mentioned by the court in its application
of the principal employer statute to the facts of that case. The primary factor
determining the outcome in Massolini was that ‘‘Hartford was engaged in
the removal of ashes and refuse in the exercise of its police powers’’;
Massolini v. Driscoll, supra, 114 Conn. 551–52; thus making ‘‘the disposal
of ashes and rubbish . . . a ‘business’ in which . . . Hartford was engaged
at the time of [the] accident . . . .’’ Id., 553.
7
The terms ‘‘statutory employee’’ and ‘‘statutory employer’’ often are used
in other states to refer to what our Workers’ Compensation Act calls the
‘‘principal employer’’ relationship. See, e.g., Va. Code Ann. § 65.2-302 (2017).
8
The dissent notes that the Virginia courts’ approach, which looks only
to the ‘‘duties, obligations, and responsibilities imposed [on governmental
entities] by statute, regulation, or other means’’ for purposes of determining
principal employer status; (internal quotation marks omitted) footnote 6 of
the dissenting opinion, quoting Ford v. Richmond, supra, 239 Va. 667; was
criticized as ‘‘out of step’’ with other state courts in a two-sentence concur-
ring opinion of the District of Columbia Circuit Court of Appeals. Best v.
Washington Metropolitan Area Transit Authority, 822 F.2d 1198, 1202 (D.C.
Cir.1987) (Mikva, J., concurring). Judge Mikva provided no analysis to
accompany that criticism, but it appears that he would prefer an approach
that determines principal employer status on the basis of whether the
employer normally carries on a given activity through its own employees
rather than through independent contractors. See id., 1200–1201 (describing
‘‘normal work’’ test rejected by Virginia Supreme Court in context of govern-
mental entities (internal quotation marks omitted)). We, of course, agree
with the dissent that an approach to determining principal employer status
for governmental entities that looks only to their legal duties and obligations
would be overly restrictive. But this court has long considered the powers
and duties of public entities as a relevant factor in determining principal
employer status. See footnote 9 of this opinion. The question of whether an
employer ordinarily would perform certain work through its own employees
rather than through contractors is likewise relevant to the principal employer
inquiry; it simply is ‘‘not necessarily conclusive.’’ Mancini v. Bureau of
Public Works, 167 Conn. 189, 196, 355 A.2d 32 (1974); accord Fox v. Fafnir
Bearing Co., supra, 107 Conn. 195. Our approach is in accordance with the
principle that ‘‘ ‘no one exclusive test can be set up’ ’’ for determining princi-
pal employer status. Battistelli v. Connohio, Inc., 138 Conn. 646, 652, 88
A.2d 372 (1952) (Inglis, J., concurring), quoting Crisanti v. Cremo Brewing
Co., 136 Conn. 529, 532, 72 A.2d 655 (1950).
9
The dissent is correct that the legally defined powers and obligations
of a municipality ordinarily should not be dispositive in determining its
‘‘trade or business,’’ but the nature and scope of those legally prescribed
duties are relevant to the inquiry, and looking to those legal prescriptions
for guidance is consistent with our decisions regarding principal employer
liability for municipal corporations. For example, in Massolini, it was signifi-
cant that Hartford was collecting rubbish and ashes pursuant to its police
powers. See Massolini v. Driscoll, supra, 114 Conn. 551–52; see also Mancini
v. Bureau of Public Works, 167 Conn. 189, 196, 355 A.2d 32 (1974) (it was
significant that public entity’s charter authorized it to engage in work that
plaintiffs had been performing when they were injured). Courts in states
with similar ‘‘trade or business’’ language in their principal employer statutes
have often looked to the powers, duties, and obligations of municipal corpo-
rations to determine the ‘‘business’’ of the corporation. See Wright v. Hono-
lulu, 41 Haw. 603, 606 (1957) (tunnel construction was ‘‘properly a part
of [the municipality’s] business’’ under workers’ compensation law when
municipality was authorized by law to finance and fund project); Klohn v.
Louisiana Power & Light, 406 So. 2d 577, 580–82 (La. 1981) (when city
bond resolution required city to retain ownership of power plant system,
city was in business of providing electric service, notwithstanding operating
agreement that transferred all operations of plant to contractor); Roberts
v. Alexandria, 246 Va. 17, 20, 431 S.E.2d 275 (1993) (‘‘because the [c]ity is
authorized and empowered [by state statute and the city charter] to operate
the jail, and to provide medical services there, the delivery of those medical
services are within the [c]ity’s trade, business, or occupation’’); see also
Leigh v. National Aeronautics & Space Administration, 860 F.2d 652, 653
(5th Cir. 1988) (when federal statute authorized agency to develop, construct,
test, and operate aeronautical and space vehicles, worker injured while
performing test on external tank of space shuttle ‘‘was performing work
that was part of the United States’ business’’ for purposes of state workers’
compensation law).
10
The dissent argues that Pacileo is distinguishable on the grounds that
‘‘[a] general construction contractor, who voluntarily undertakes the organi-
zation of a major construction project as a commercial venture, is situated
differently from a municipality that has broad statutory powers in a variety
of areas . . . .’’ Footnote 7 of the dissenting opinion. We agree that a munici-
pality’s business activity will generally be broader than that of a commercial
enterprise focused on providing a particular product or service, but we do
not see how this should be a limiting consideration when determining a
municipality’s trade or business. A municipality like Bridgeport has been
conferred broad operational responsibilities. With those responsibilities
come correspondingly broad obligations. In this regard, we repeat our obser-
vation that the legislature has seen fit to treat public and private employers
without distinction or differentiation for purposes of determining principal
employer status. We respectfully disagree that a consideration deemed rele-
vant to determining the principal employer status of a private business in
Pacileo should be excluded from consideration as part of the same inquiry
for a public employer.
11
The range of skilled tradespeople employed by the city reveals the flaw
in the city’s argument that it cannot be the plaintiff’s principal employer
because it is not in the business of roofing. The city also is not ‘‘in the
business’’ of masonry, plumbing, carpentry, painting, or electrical work, yet
it employs individuals skilled in each of these trades because the business
of the city requires it to manage, maintain, and repair a wide range of public
facilities, including its transfer facility.
12
The defendants also point to our decision in Grenier v. Grenier, supra,138 Conn. 569, in support of their argument that roof repairs cannot be a
part or process in the city’s business. In Grenier, the plaintiff was injured
while working for a contractor hired to install weatherproofing material on
a new roof being constructed by another contractor as part of a major
renovation of a three-story building owned by a car dealership. Id., 570. We
upheld the commissioner’s finding that the plaintiff’s work was not a part
or process in the trade or business of the dealership. Id., 572. We reject the
defendants’ contention that there is ‘‘no distinction’’ between Grenier and
the present case. To the contrary, we believe that the commissioner in the
present case was entitled to see a substantial difference between the major
capital improvement undertaken by the automobile dealership in Grenier
and the repair of an existing roof on the city’s transfer station at issue here.
13
In Mancini and Hebert, the court made reference to supervision of the
work site by the principal employer when discussing control of the premises.
See Mancini v. Bureau of Public Works, supra, 167 Conn. 200; Hebert v.
RWA, Inc., supra, 48 Conn. App. 454. Control of the premises is a separate
element of the principal employer analysis, distinct from the trade or busi-
ness inquiry. See Crane v. Peach Bros., supra, 106 Conn. 113 (‘‘[t]o render
a principal employer liable, it is clear [that] this statute requires (1) that
the relation of principal employer and contractor must exist in work wholly
or in part for the former, (2) that the work must be in, on or about premises
controlled by the principal employer, and (3) that the work be a part or
process in the trade or business of the principal employer’’).
14
In doing so, we also acknowledge the wisdom found in Judge Learned
Hand’s cautionary note that a dictionary will not always provide the very
best resource for determining the meaning of a word at any particular time.
See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (‘‘it is one of the surest
[indices] of a mature and developed jurisprudence not to make a fortress
out of the dictionary’’), aff’d, 324 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 2d (1945);
see also United States v. Costello, 666 F.3d 1040, 1043–44 (7th Cir. 2012).
15
‘‘Public corporations have always been included within the scope of
our [Workers’ Compensation Act], no doubt because there is no substantial
reason why their employees should be treated differently than employees
in private industry. . . . [P]ublic corporation as used in § 31-275 (10) . . .
signifies corporations organized for a public purpose such as municipalities
and counties. . . . [T]his interpretation is consistent with the legislative
history . . . . During the committee hearings on the bill that became chap-
ter 138 of the 1913 Public Acts, [P]rofessor Willard C. Fisher, an economist
at Wesleyan University who had been engaged by the standing committees
on judiciary and labor to assist in drafting the act, remarked that the law
ought to be as wide as possible in its scope; there ought to be no employment
left out that can practicably be included. . . . Fisher stated further that
there is no good reason for excluding employment of public corporations
. . . truly public corporations, the state, the city and the like.’’ (Citations
omitted; internal quotation marks omitted.) Lopa v. Brinker International,
Inc., 296 Conn. 426, 431–32, 994 A.2d 1265 (2010).
16
See footnote 3 of this opinion.