DocketNumber: No. 517886
Citation Numbers: 1995 Conn. Super. Ct. 10326, 15 Conn. L. Rptr. 78
Judges: HENDEL, J.
Filed Date: 9/14/1995
Status: Non-Precedential
Modified Date: 4/18/2021
The relevant facts are as follows. On March 19, 1989, the plaintiff was injured at work when he hit his head on a low hanging pipe. At the time of his injury, the plaintiff was employed by Combustion Engineering, Inc. (Combustion). Following the injury, the plaintiff collected worker's compensation payments from Combustion's insurer, CNA Insurance Co. (CNA).
The plaintiff filed the present negligence action against the defendant AES Thames, Inc., the installer of the pipe. After the commencement of this action, pursuant to General Statutes §
The plaintiff opposes the Fund's intervention on the ground that the Fund's right to intervene expired. The plaintiff alleges that the Fund failed to join in as a co-plaintiff within thirty days after it was notified of this action. In support of its position, the plaintiff claims that the Fund was put on notice of the existence of the third-party action when CNA and Combustion intervened and subsequently transferred the claim to the Fund. The Fund, however, claims that CNA and Combustion never provided the proper statutorily CT Page 10328 mandated notice and that the Fund it is not time barred from intervening in this suit.
This motion turns on a proper interpretation of the relevant worker's compensation statutes. Section
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. . . . The bringing of any action against an employer shall not constitute notice to the employer to the employer within the meaning of this section. (Emphasis added.)
Section
The provisions of section
31-293 shall apply to any payments from the Second Injury Fund and the treasurer is authorized to bring an action, or join in an action as provided by said section, when he CT Page 10329 has paid, or by award has become obligated to pay, compensation out of the fund.
There is no dispute among the parties that the Fund had the right to intervene as a co-plaintiff, but the real issue is whether the plaintiff, his employer or the insurance carrier gave the Fund proper notice of this third-party negligence action. If proper notice was given, then the Fund's attempt to intervene now would be untimely under the statute. The issue presented is one of first impression.
In construing the notice requirement of §
Where a cause of action has been created by statute, strict compliance with the prescribed procedure has been deemed essential. [Section
31-293 ] is plain and unambiguous, leaving no room for construction. . . . [Section31-293 ] must be applied as its words direct. (Internal quotation marks and citations omitted.)
Misiurka v. Maple Hill Farms, Inc.,
Under §
In this case, it is undisputed that the Fund did not receive notice in "writing, by personal presentation or by registered or certified mail" as the §
Section
As a condition precedent to the liability of the Second Injury Fund, the employer or his insurance carrier shall, no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability, notify CT Page 10330 the custodian of the Second Injury Fund of the pending case . . .
This notice requirement, however, has nothing to do with the Fund's statutory right to recoup compensation payments under §
Therefore, the Fund's motion to intervene as a co-plaintiff is granted.