YEPES v. BLACKMAN, No. CV-02-0097897 (Oct. 1, 2004)

SILBERT, JUDGE.

The plaintiff, a Middletown Police Officer, alleges that he was injured when, while engaging in a routine stop and search of a vehicle along Route 66, he was struck by a motor vehicle driven by the named defendant Rodney Blackman and owned by the defendant Wade Palmer Trucking Co. The city of Middletown (city) intervened to recover workers' compensation benefits it had paid to Yepes. On March 14, 2004, the defendants filed a revised one-count counterclaim against the city, sounding in negligence. The counterclaim seeks recovery from the city for property damage to their trailer as well as for any property damage and injuries for which they may be liable to Yepes in the underlying case. They claim that the city was negligent in the management and training of its officers and that the city has respondeat superior and statutory liability, under General Statutes § 52-557n. The city has now moved for summary judgment, contending that the exclusivity provision of the Workers' Compensation Act bars the defendants' cause of action.

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, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "The party seeking summary judgments has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing CT Page 15152 such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).

"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . [the nonmovant] opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

The city argues that it is entitled to summary judgment because the defendants' claim is barred by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284, which prohibits an alleged tortfeasor, in this case, the defendants, from seeking indemnification from the named plaintiff's employer, in this case, the city, when the employer has intervened solely for the purpose of recovering workers' compensation benefits under General Statutes § 31-293. It contends that an employer cannot be responsible in negligence for the same acts that it is now seeks reimbursement. Moreover, the city contends that the limited exception to recovering under a theory of indemnification exists only if the city breached an independent legal duty owed to the defendants and argues that count one of the counterclaim is devoid of any allegations that might support a finding of an independent legal relationship between the two parties. Thus, it argues that the court should grant its motion for summary judgment because the defendants failed to set forth allegations in its counterclaim that might overcome the exclusivity provision.

The defendants respond that they are seeking indemnification from the city for the negligent actions of its employees, pursuant to § 52-557n, and that § 52-557n abrogates the city's governmental immunity, even in cases when the municipality intervenes only to recover workers' compensation benefits paid on behalf of its employee. Additionally, they argue that there is no CT Page 15153 express language in the exclusivity provision that bars them from filing a counterclaim against the city under § 52-557n. Thus, the defendants contend that they may seek relief under either § 52-557n, or by way of pleading the exception to the exclusivity provision.

In paragraph nine of the counterclaim, the defendants allege that they are entitled to monetary damages for both the resulting property damage to their trailer, and any damages or injuries sustained by Yepes "from this lawsuit for which the defendants Rodney Blackman and Wade Palmer Trucking, are alleged to be liable, which liability is expressly denied, such as by way of judgment for the plaintiff or intervening plaintiff against the defendants or settlement, from the city of Middletown for the negligent actions of it . . . officers . . . within the scope of employment or official duties as the City of Middletown . . ." The court will address each of these claims of liability as it relates to the city's motion for summary judgment.

First, the court interprets the claim whereby the defendants seek relief from the city for any damages or injuries sustained by Yepes for which they are alleged to be liable as one sounding in indemnification, and, indeed, the city's motion for summary judgment is directed at the defendants' claim for indemnification. The city asserts that it is entitled to summary judgment because the defendants failed to allege facts supporting the finding of an independent legal relationship between them and the city that would overcome the exclusivity provision. In a previous memorandum of decision, dated December 17, 2003, this court granted the city's motion to strike counts four and five, which were also claims for indemnification, on the ground that those counts were devoid of any allegations that might support the existence of an independent legal relationship between the city and the defendants, so as to overcome the exclusivity provision. The court's previous decision is the law of the case, and therefore no further discussion on the issue of indemnification is necessary. See Gagne v. Vaccaro, 80 Conn.App. 436, 449, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004) ("[w]here a matter has previously been ruled upon interlocutory, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance").

Following the court's decision, the defendants filed this CT Page 15154 revised one-count counterclaim but failed, to assert any additional allegations that might support a finding of an independent legal relationship between the two parties. There is therefore no genuine issue of material fact in dispute regarding the city's contention that the counterclaim sounds in indemnification, as it relates to the damages and injuries sustained by Yepes and, therefore that it required allegations of an independent legal relationship between the defendants and the city in order to be viable. Thus, the city's motion for summary judgment is granted as to that portion of the counterclaim that seeks indemnification from the city for any liability that the defendants are found to have to Yepes.

A reasonable reading of the counterclaim also indicates, however, that the defendants' second claim of liability is directed at damages to their own trailer. The defendants claim that these damages were the result of the city's negligence and fall, therefore, under the purview of General Statutes § 52-557n. As the city's motion for summary judgment does not address the defendants' claim for relief under § 52-557n, there are genuine issues of material facts still in dispute as to whether the defendants are entitled to relief for the damages to their trailer as a result of the city's alleged negligence. The defendants are therefore permitted to pursue their claim against the city, under § 52-557n, for such property damages.

For all of the above reasons, the city's motion for summary judgment is granted as to the indemnification claim for any damages and injuries to Yepes, but denied with regard to the claim for damages to the defendants' trailer. In order to help maintain intelligibility of the pleadings, the defendants are directed to file a revised counterclaim, omitting those allegations as to which summary judgment has been granted.

Jonathan E. Silbert, Judge