Velecela v. All Habitat Services, LLC ( 2016 )

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VELECELA v. ALL HABITAT SERVICES—CONCURRENCE
EVELEIGH, J., concurring. I agree with the majority
opinion that bystander emotional distress is a derivative
cause of action and that, therefore, the workplace acci-
dent in the present case was barred by the exclusivity
provision of the Workers’ Compensation Act (act). See
General Statutes § 31-284; see also Galgano v. Metropol-
itan Property & Casualty Ins. Co., 267 Conn. 512, 521,
838 A.2d 993 (2004). I write separately, however, to
emphasize that if the complaint in the present case had
alleged sufficient facts to demonstrate that the accident
at work fell within one of the known exceptions to
employer immunity in the workers’ compensation statu-
tory scheme, the plaintiff, Jenny Velecela, would have
had a viable action for bystander emotional distress.
General Statutes § 31-293a.
Section 31-293a provides in relevant part as follows:
‘‘If an employee or, in case of his death, his dependent
has a right to benefits or compensation under this chap-
ter on account of injury or death from injury caused
by the negligence or wrong of a fellow employee, such
right shall be the exclusive remedy of such injured
employee or dependent, and no action may be brought
against such fellow employee unless such wrong was
wilful or malicious or the action is based on the fellow
employee’s negligence in the operation of a motor vehi-
cle as defined in section 14-1. . . .’’ Accordingly, if the
plaintiff in the present case had alleged sufficient facts
to demonstrate that the death of the plaintiff’s husband,
Austin Irwin, was caused by another employee’s wilful
or malicious conduct or another employee’s negligence
in the operation of a motor vehicle, such an injury
could have formed the basis of a claim of bystander
emotional distress.
The action in this case does not fail because the
plaintiff was awarded benefits under the act. Indeed,
just as a worker who receives compensation can bring
an action in civil court if his case falls within an excep-
tion, so should a bystander spouse, who otherwise quali-
fies under our rules regarding bystander emotional
distress, be allowed to bring an action. See Jett v. Dun-
lap, 179 Conn. 215, 219, 425 A.2d 1263 (1979) (‘‘[i]f the
assailant [in a workplace assault] is of such rank in the
corporation that he may be deemed the alter ego of the
corporation under the standards governing disregard
of the corporate entity, then attribution of corporate
responsibility for the actor’s conduct is appropriate’’);
see also Suarez v. Dickmont Plastics Corp., 229 Conn.
99, 110–13, 639 A.2d 507 (1994) (if plaintiff could prove
that forbidding him to use vacuum cleaner and turn off
machine was substantially certain to cause injury then,
assuming alter ego status, a remedy existed). Accord-
ingly, a claim for bystander emotional distress would
also be viable for a third-party action brought by the
representative of the estate if the complaint alleged
facts to bring it within an exception to the exclusivity
provisions of the act. Because I agree with the majority’s
analysis of the legal sufficiency of the complaint in the
present case, I agree with that opinion.