Three cases in particular stand out this year in the tort and insurance arena for their common theme of significantly limiting injury victim's ability to obtain a full recovery for tortious injury when the same flowed from the workplace. The first is Pelletier v. Sordoni/Skanski Construction Co., 286 Conn. 563 (2008). In Pelletier, the plaintiff was catastrophically injured as a result of being struck by a steel beam which had collapsed on him due to an improper weld. The plaintiff was employed by a subcontractor, Berlin Steel Construction Co., and brought this case against the general contractor claiming they had negligently caused the injury. The jury accepted his claim and returned a verdict in excess of forty million dollars.
The general contractor appealed, claiming it had no direct responsibility for the injuries, essentially claiming it had delegated those responsibilities to the plaintiff's employer and others. The Supreme Court had already reviewed the Pelletier case previously in 2003, Pelletier v. Sordoni/Skanski Construction Co., 264 Conn. 509 (2003), in a decision which appeared to resolve these issues in the plaintiff's favor. However, the Supreme Court reversed the jury verdict for the plaintiff and directed judgment for the general contractor, essentially finding that the general contractor could and did delegate its responsibility to others who were immune from liability for the plaintiff's injury due to the worker's compensation exclusivity bar.
In Archambault v. Soneco/Northeastern, Inc.., 287 Conn. 20 (2008), the plaintiff was also catastrophically injured when a trench he was working in collapsed. The plaintiff was employed by a subcontractor and brought a claim against the general contractor, claiming it was responsible for his injuries as it had or assumed a duty to supervise safety at the worksite. The trial court instructed the jury that the general contractor's responsibility for safety on the worksite was nondelegable, and precluded the general contractor from attempting to shift the blame to the plaintiff's employer following the Supreme Court's decision in Durniak v. August Winter & Sons, Inc., 222 Conn. 775 (1992), which seemed to suggest such a result.
The jury accepted the plaintiff's claim and returned a verdict in excess of three million dollars. The general contractor appealed, and the Supreme Court reversed, distinguishing the Durniak case on the grounds that case was dealing with the rights of an intervening employer and was not controlling in the present case.
In Jaiguay v. Vasquez, 287 Conn. 323 (2008) , the plaintiff's decedent was killed in a motor vehicle crash in an overloaded pickup truck which the driver knew to have bad brakes in which he had been driving at approximately double the speed limit. The plaintiff brought an action against the named defendant driver and the non-employer owner of the truck. The defendants raised the defense of the worker's compensation exclusivity bar and the trial court granted summary judgment for the defendants.
The plaintiff appealed, arguing the Connecticut law allowed an action against a co-employee operator of a motor vehicle and that even if New York law applied there were various exceptions to immunity or questions of fact as to whether the bar even applied as it was unclear whether the tortious actions in question were in the scope of employment. The Supreme Court's recent decision of Johnson v. Atkinson, 283 Conn. 243 (2007), unequivocally provided that Jaiguay would be allowed to pursue a recovery against the driver of the motor vehicle he was in since the injury occurred in Connecticut. The Supreme Court affirmed the summary judgment, expressly overruling that portion of Johnson that would have allowed the plaintiff to have his day in court.
In each of these cases a worker was catastrophically injured or killed as a result of clearly tortious misconduct and denied a full and fair recovery for the same due to a strict application of the exclusivity bar, a refusal to recognize duties or exceptions which would allow for recovery, and a policy of allowing the delegation or shifting of responsibility to the immune employer (which actually means no one can be held liable if a catastrophic injury occurs). In doing so the Court either expressly overruled or aggressively distinguished prior authority which seemed to allow for recovery and implicitly if not explicitly seemed to be promoting a public policy of maximizing the impact and reach of the exclusivity bar.
In each of these three cases a motion for reconsideration was filed, two of which remain pending (Pelletier and Jaiguay). The Connecticut Trial Lawyers Association has filed for amicus status in each of these three cases and joined the call for reconsideration due to the impact of these decisions on a broad spectrum of injury victims in Connecticut and the fact that allowing responsibility to be delegated to immune parties minimizes the incentive of everyone involved to seek to avoid such injuries in the first place.
The worker's compensation exclusivity bar was largely devised to avoid a constitutional challenge to the entire scheme under Lochner v. New York, 198 U.S. 45 (1905) . However, under modern constitutional doctrine, no one would seriously question whether a state could validly impose a worker's compensation insurance requirement without an exclusivity bar or one with significant exceptions designed to maximize the incentive to avoid catastrophic injury. As the Supreme Court of Washington has noted, while "in 1916 everyone `agreed that the blood of the workman was a cost of production,' that statement no longer reflects the public policy or the law." Birklid v. Boeing Co., 904 P.2d 278, 289-90 (Wash. 1995).
It is difficult to understand why the exclusivity bar is seen as good public policy at all, let alone why the decisions seem to seek to expand its reach rather than narrowly and strictly construe a statute which fundamentally undermines the basic purpose of tort law and rests on dubious policy grounds. Whether or not the Connecticut Supreme Court reconsiders any or all of these cases now or in the future, the legislature should consider analyzing whether maintaining the exclusivity bar still makes good policy sense given the damage it inflicts upon catastrophic injury victims.