DocketNumber: No. 32 29 22
Citation Numbers: 1996 Conn. Super. Ct. 9539, 18 Conn. L. Rptr. 273
Judges: MORAGHAN, J.
Filed Date: 11/22/1996
Status: Non-Precedential
Modified Date: 4/17/2021
Olsten was granted permission to intervene as co-plaintiff pursuant to Sec.
Olsten has filed a motion to strike Memry's special defense of contributory negligence on the part of Olsten on the ground that contributory negligence may not be raised as a special defense to an employer's indemnification claim. Olsten argues that since the employer's right to reimbursement from a third party tortfeasor for worker's compensation benefits paid to an employee is a statutory claim, the principles of contributory negligence are not applicable. In support of this contention, Olsten relies on Durniak v. August Winter Sons, Inc.,
Olsten, in addition, has filed a motion to strike both counterclaims, arguing that the claims are barred by the exclusivity provisions of the Workers' Compensation Act contained in Sec.
Memry has responded that it has alleged the existence of an independent legal relationship in that Olsten, as a temporary employment agency, made specific representations to the defendant that it would train its employees for the defendant. It continues by asserting that this legal relationship gives rise to a duty to indemnify since this independent legal relationship springs from the contractual relationship between the employer and the defendant.
"A motion to strike is the proper procedural vehicle to challenge the legal sufficiency of any special defense." GatewayBank v. Herman, Superior Court, judicial district of Danbury, Docket No. 315947 (May 15, 1995, Stodolink, J.); Practice Book, Sec. 152(5). "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v. Bassman
"The motion to strike . . . admits all facts well pleaded." CT Page 9541Ferryman v. Groton,
The Supreme Court in Durniak v. August Winter Sons, Inc.,
supra, 778 n. 3, held that it is improper for a defendant "to raise the negligence of the plaintiff's employer as a special defense in answer to the intervening complaint of the plaintiff's employer in a case where the intervening complaint is based solely upon the statutory rights accorded the plaintiff's employer" under Sec.
However, in a footnote (footnote 5), the court remarked that a different result might follow if the special defense alleged not merely the negligence of the employer, but included some other basis for liability such as the existence of an independent relationship between the defendant and the employer. Based on this comment, several Superior Courts have concluded that where the defendant-tortfeasor has alleged the existence of an independent relationship between it and the employer, the special defense of comparative negligence can be raised. See, e.g.,McGahee v. Safeway Moving,
Olsten's motion to strike Memry's special defense of contributory negligence is therefore denied as that defense fits into the exception referred to by the court in Durniak. In fact, this court addressed the propriety of asserting the special defense of contributory negligence against an employer-intervenor in an action by an injured employee against a third party tortfeasor in Caron v. Connecticut Light Power, Superior Court, judicial district of Danbury, Docket No. 320834 (May 10, 1996, Moraghan, J.). The same analysis applies in this case. CT Page 9542
Memry has alleged, and for purposes of this motion, the court must take those allegations to be true; Connecticut National Bankv. Douglas, supra; that Olsten was in exclusive control over Murphy's training. Memry also claims that Olsten represented to Memry that it would properly train its employees, and that this representation gave rise to an independent legal duty to indemnify. This is the kind of "independent relationship between the defendant and the employer" that the Durniak court contemplated. Accordingly, the motion to strike Memry's special defense is denied.
"A motion to strike may also be employed to challenge the legal sufficiency of a counterclaim." American Bank v. Mango,
Superior Court, judicial district of Waterbury, Docket No. 126053 (January 16, 1996, Pellegrino, J.), citing Emlee EquipmentLeasing Corporation v. Waterbury Transmission, Inc.,
Olsten's motion to strike Memry's counterclaims is denied since Memry has indeed pleaded a prima facie claim that it is entitled to indemnification based on the contractual relationship between it and Olsten, i.e., that Olsten would provide Memry with CT Page 9543 properly trained employees.
Accordingly, the motions to strike are denied as to (1) the special defenses; and (2) as to the counterclaims.
Moraghan, J.