DocketNumber: No. CV 94318814S
Citation Numbers: 1995 Conn. Super. Ct. 6996, 14 Conn. L. Rptr. 333
Judges: MAIOCCO, J.
Filed Date: 6/14/1995
Status: Non-Precedential
Modified Date: 4/17/2021
On December 5, 1994, the plaintiff, Paul Us, filed a nine-count complaint against his employer, Marsillio's, Inc., and its insurer, ITT Hartford. On April 3, 1995, the plaintiff filed a revised complaint. The plaintiff alleges in the revised complaint seven counts against ITT Hartford and two counts against Marsillio's, Inc. The counts against ITT Hartford consist of a claim of bad faith, a violation of Connecticut Unfair Trade Practices Act (CUTPA), a violation of Connecticut Unfair Insurance Practices Act (CUIPA), a breach of conduct, misrepresentation, a violation of public policy and conversion.
The defendant, ITT Hartford, filed a motion to dismiss and a supporting memorandum on January 13, 1995, on the basis that entitlement had not yet been determined by the workers' compensation commissioner.1 The plaintiff filed a memorandum in opposition to the motion to dismiss on April 3, 1995, the date of oral argument.2
"A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Zizka v. WaterPollution Control Authority,
While it is true that the failure to exhaust administrative remedies affects the court's subject matter jurisdiction; see CT Page 6997Polymer Resources, Ltd. v. Keeney,
Moreover, the plaintiff is not basing his action in the present case on an injury arising out of and in the course of his employment. See Lenz v. CNA Assurance Co.,
ITT Hartford contends that the court does not have jurisdiction over the present action because the , workers' compensation commissioner has not yet determined if the plaintiff is entitled to compensation pursuant to the Workers' Compensation Act. The plaintiff does not claim any finding on the part of the workers' compensation commissioner that he is entitled to compensation.
Nonetheless, the reasoning of Rotz v. Middlesex, Superior Court, JD of Fairfield at Bridgeport, DN. 307488 (December 16, 1993) (Ballen, J.)* is in point. In that case the court, Ballen, J., ruled:
[A]n employee must first establish his right to receive workers' compensation benefits before he can seek economic and punitive damages based on allegations that the insurer engaged in misconduct with respect to either the handling, settlement, or payment of the employee's claim. While the plaintiff's failure to allege in his CT Page 6998 complaint that he has been awarded workers' compensation benefits implicates the legal sufficiency of his complaint, such failure does not implicate the court's subject matter jurisdiction, as this court clearly has the power to hear and adjudicate claims of insurer misconduct, breach of contract, CUTPA, and conversion.
A decision has not yet been rendered with respect to the plaintiff's right to receive benefits. The court recognizes that the plaintiff must allege or establish that he is entitled to receive workers' compensation benefits "in order to state a legally sufficient claim against an insurer based on the insurer's failure' to pay benefits." Rotz v. Middlesex, supra,* citingCarpentino v. Transport Ins. Co.,
However, this issue is not appropriate for a motion to dismiss as the defect does not affect the court's jurisdiction.
Accordingly, the motion to dismiss is denied.
MAIOCCO, JUDGE.