DocketNumber: No. CV99 036 04 14 S
Citation Numbers: 2000 Conn. Super. Ct. 185
Judges: MELVILLE, JUDGE.
Filed Date: 1/5/2000
Status: Non-Precedential
Modified Date: 4/18/2021
The defendant moves to strike count one of the plaintiff's amended complaint based on the exclusivity of the Workers' Compensation Act, General Statutes §
General Statutes §
"If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter 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 in the fellow employee's negligence in the operation of a motor vehicle as defined in section
14-1 ."
The definition of motor vehicle for purposes of the motor vehicle exception to §
The term "operation" is not defined in General Statutes §
This policy is found in Dias v. Adams,
"Although the legislative history of §
31-293a is not especially revealing, there is some evidence that the intention was to distinguish `simple negligence on the job' from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by §31-293a to accidents having a less distinct relationship to the hazards of the employment. At the same time, it has accorded the injured employee, in addition to workers' compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident." Id., 359-60.
In Dias, the court held that the defendant's operation of the shovel component of a backhoe prevented the plaintiff from recovering under the motor vehicle exception to the Workers' Compensation scheme. See Dias v. Adams, supra,
In Ferreira v. Pisaturo,
"The plaintiff's decedent, on the day in question, where he was working, subjected himself to the `special hazards of the workplace.' The risk of injury he faced was not that risk of a motor vehicle accident faced by the general public as a `common danger.' Clearly, the accident here had a `distinct relationship to the hazards of the employment.' . . . The general public is not exposed to the risk entailed by working in an open trench in close proximity to a piece of heavy construction equipment compacting earth in a portion of that trench. The plaintiff's decedent was not facing the hazards encountered by the general public as motorists or even pedestrians walking on or alongside a highway open to the public." (Citations omitted.) Ferreira v. Pisaturo, supra,
41 Conn. Super. Ct. 352 .
The court then addressed the significant facts of the present case in dicta:
"Even if a car or truck had been used instead of the Clark Michigan 55 B to compact earth and the accident occurred just as it did here, analytically speaking, an argument could be made that, if the purpose behind the `motor vehicle exception' in General Statutes §
31-293a as set forth in Dias v. Adams,189 Conn. 354 ,456 A.2d 309 (1983), were to be extended to its logical conclusion, and the statute reworded accordingly, workers' compensation should be the exclusive remedy. The injury suffered and the risk assumed by the worker in that situation would still not be of the type faced by the general public in regards to ordinary usage of motor vehicles. That public does not work in trenches, and cars and trucks are not customarily used to compact earth on or near roads closed to the public in construction worksite areas. The fact that the statutory language was not written as expansively as it could have been to accomplish completely its purported purpose does not mean that what that language did effect toward the end — exclusion of `contractors' mobile equipment' from the definition of `motor vehicle' — should be emasculated by judicial embroidery and unjustified interpretations of particular statutes finding no basis in the purposes of the statutory scheme." (Emphasis added.) Ferreira v. Pisaturo,41 Conn. Super. Ct. 326 ,352 n. 3,574 A.2d 1324 (1989), aff'd, CT Page 189215 Conn. 55 ,573 A.2d 1216 (1990).
Applying the foregoing rationale to the present case, it is clear that the plaintiff's amended complaint does not state facts upon which the motor vehicle exception to the Workers' Compensation Act can be applied. Although the plaintiff alleges that the defendant was operating the employer's truck in the course of employment during the accident, the incident here had a clear distinct relationship connecting it to the hazards of the employment. See Dias v. Adams, supra,
MELVILLE, J.