DocketNumber: No. CV 96-0135449 S
Citation Numbers: 1998 Conn. Super. Ct. 3569, 21 Conn. L. Rptr. 463
Judges: ESPINOSA, J.
Filed Date: 3/27/1998
Status: Non-Precedential
Modified Date: 7/5/2016
Mr. Dinkoski alleges the following facts:1
Mr. Dinkoski was employed by SRC as a dump truck driver. SRC bought a Model 320 Peterbilt tandem steer cab and chassis (hereinafter "truck") with a front cab guard/ladder from Truck Center, Inc. of North Haven, Connecticut in 1993. The front cab guard/ladder (also referred to as a "windshield guard") on the truck consists of two vertical metal rails supporting four horizontal steps with foot grips. There are no handrails at the top step which is parallel with the top of the cab. On October 1, 1993, Mr. Dinkoski fell backward off the top of the truck CT Page 3570 onto the pavement while climbing the front cab guard/ladder. As a result of the fall off of the dump truck, Mr. Dinkoski suffered numerous injuries for which SRC paid him workers' compensation benefits in the amount of $64,258.76, and which SRC seeks to recover in the present lawsuit.
Plaintiff SRC originally filed an action in United States District Court for the District of Connecticut at Hartford on September 26, 1995 to recover the above-mentioned reimbursement of worker's compensation benefits pursuant to C.G.S. §
On September 30, 1996, counsel for SRC, notified Mr. Dinkoski, that SRC was filing a complaint returnable to the judicial district of Waterbury for the reimbursement of worker's compensation benefits pursuant to General Statutes §
On September 30, 1996, Mr. Dinkoski filed a motion to intervene as co-plaintiff and an intervening complaint. On October 7, 1996, SRC's complaint was filed in the judicial district of Waterbury. On November 13, 1996, Mr. Dinkoski filed a notice of amended caption, an amended motion to intervene, and an amended complaint bearing amended caption. The Court, Fasano, J. granted the motion to intervene as co-plaintiff on December 23, 1996.
On June 26, 1997, Mr. Dinkoski filed a revised intervening complaint against defendants Peterbilt of Connecticut, Peterbilt Motors Company (a Division of Paccar), and Truck Center Inc. On August 6, 1997, Peterbilt Motors filed a motion for summary CT Page 3571 judgment on Mr. Dinkoski's revised intervening complaint on the ground that Mr. Dinkoski's right of action has abated pursuant to General Statutes §
Discussion
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven,
Peterbilt Motors contends that pursuant to C.G.S. §
The Court agrees with Mr. Dinkoski that the notice given to him by his employer, SRC, cannot be enforced. The Court finds that the notification is statutorily and constitutionally defective. The September 26, 1995 letter to Mr. Dinkoski referenced the name of the action which SRC was pursuing: "Sanitary Refuse Co. v. The Heil Co." It also stated as follows, in pertinent part:
My client has paid compensation benefits in connection with injuries you suffered on October 1, 1993, in the amount of $64,258.76. We are pursuing CT Page 3572 our reimbursement rights in accordance with §
31-293 of the Connecticut General Statutes to recover all benefits paid, and to be paid, on your behalf.In that connection, please be advised that we have filed a third party claim against The Heil Co., the responsible party. This action is pending in the United States District Court, District of Connecticut.
Pursuant to Conn. Gen. Stat. §
31-293 , you have the right to join the above entitled action as party plaintiff. Your failure to intervene within thirty days of your receipt of this letter, however, will constitute a waiver of your right to do so.
Thus, the only notification of the court to which the writ is returnable is the "United States District Court, District of Connecticut." However, there are three seats of court for the District Court for the District of Connecticut, one in Hartford, one in New Haven and one in Bridgeport. This notice, therefore, does not adequately inform Mr. Dinkoski of the location of the court where the action is pending. Accordingly, the court finds that the notice fails to meet the statutory requirement of §
Moreover, the notice at issue in this case does not comply with the due process of law requirements set forth by the Connecticut Supreme Court in Worsham, supra. In Worsham, the Court specifically held that ". . . in order for the abatement provision of §
In the instant case, the court finds that the September 26, 1995 letter sent to Mr. Dinkoski by his employer, SRC, does not meet the Worsham requirements as aforementioned. The statement that ". . . failure to intervene within thirty days of your receipt of this letter . . . will constitute a waiver of your right to do so," does not adequately inform Mr. Dinkoski of the consequences of inaction by him. It does not explicitly advise Mr. Dinkoski of the permanency of the loss of his claim. A non-lawyer could reasonably interpret this notice to mean that he had the option of intervening in the lawsuit brought by his employer against the Heil Company or lose his right to do so against that party only. After receipt of the notice at issue in this case, Mr. Dinkoski also could have reasonably believed that he still would be entitled to join prospective causes of actions brought by his employer. The court finds, therefore, that the notification given to Mr. Dinkoski is constitutionally defective and cannot be invoked against him in the present action. Accordingly, Peterbilt Motors' motion for summary judgment is hereby denied.
ESPINOSA, J.