Reichert v. Sheridan

642 A.2d 51, 34 Conn. App. 521, 1994 Conn. App. LEXIS 199
CourtConnecticut Appellate Court
DecidedMay 31, 1994
Docket12150
StatusPublished
Cited by17 cases

This text of 642 A.2d 51 (Reichert v. Sheridan) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reichert v. Sheridan, 642 A.2d 51, 34 Conn. App. 521, 1994 Conn. App. LEXIS 199 (Colo. Ct. App. 1994).

Opinion

Lavery, J.

The issues presented in this appeal are, first, whether notice of an employer’s suit against a third party tortfeasor, otherwise valid under General Statutes § 31-293 (a),1 is nonetheless invalid because it was sent by the employer’s insurance carrier instead of by the employer and, second, whether the abatement provision of § 31-293 (a)2 bars an employee’s right of action.3 The plaintiff, Francis Reichert, was injured while employed by the town of Suffield when he was struck by the defendant’s truck. The town sued the defendant, James J. Sheridan, Jr., in November, 1991, [523]*523to recover moneys paid to the plaintiff under the Workers’ Compensation Act (act).4

The plaintiff received notice of the suit through a letter from an attorney representing the town’s workers’ compensation insurance carrier. The letter was captioned “Town of Suffield vs. James J. Sheridan, Jr.” It explained the relationship between the insurance company and the town and stated that suit was being brought against the defendant based on the plaintiff’s accident. The letter advised the plaintiff that he would be barred from recovery if he failed to join the suit within thirty days and encouraged the plaintiff to give the letter to an attorney. Finally, copies of the writ, summons and complaint in the town’s action against the defendant were enclosed with the letter.

Notwithstanding the letter, the plaintiff did not join the town’s action, but brought a separate action two months later. The defendant moved for summary judgment claiming that the plaintiff’s suit was barred by the abatement provision of § 31-293. The trial court agreed and rendered summary judgment. This appeal followed. We affirm the judgment of the trial court.

I

The plaintiff first claims that summary judgment was improper because a genuine issue of material fact existed regarding whether the notice requirement of § 31-293 had been satisfied. Specifically, the plaintiff asserts that the notice was invalid because it was sent by an attorney representing the town’s insurance company and not the town itself. The trial court determined that no genuine issue of material fact existed regarding the sufficiency of the notice provided to the plaintiff. We agree.

[524]*524The standard governing our review of a trial court’s summary judgment ruling is clear. 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.” Practice Book § 384. Once the movant shows an absence of any disputed material fact, the opponent must show the existence of a genuine issue of material fact together with supporting evidence. Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 165-66, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Id., 166.

Section 31-293 (a) provides that both employers and employees may proceed at law to recover losses due to third party tortfeasors. It further requires that the party who brings the action against the third party must notify the other that the action has been brought and provide the name of the court in which the action is pending so that the nonparty may join. General Statutes § 31-293 (a); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). If the nonparty fails to join the suit within thirty days, “his right of action against the third person shall abate.” General Statutes § 31-293 (a); Winslow v. Lewis-Shepard, Inc., supra, 538.

In this case, the town, as employer, sued the defendant to recoup the amounts paid to the plaintiff under the act. The plaintiff received notice that the town had brought an action against the defendant and where the [525]*525action was maintained.5 The notice also warned the employee that failure to join within thirty days would result in his being barred from recovery, advised him to give the notice to an attorney and included a copy of the writ, summons and complaint. Viewed in the light most favorable to the plaintiff, this evidence demonstrates that the plaintiff received ample notice of the employer’s suit.

The plaintiff claims, however, that the notice was not statutorily sufficient because it was sent by the attorney representing the town’s workers’ compensation insurance carrier rather than the town itself. In light of the actual notice present on these facts, we decline to adopt so rigid a rule. We will not elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose. State v. Chapman, 227 Conn. 616, 621, 632 A.2d 674 (1993), rev’d on other grounds, 229 Conn. 529, 643 A.2d 1213 (1994). The notice explained the relationship between the insurance company and the town and clearly established that the town had brought suit.

We recognize that insurance carriers are not equivalent to employers for the purposes of notice under § 31-293. Johndrow v. State, 24 Conn. App. 719, 721, 591 A.2d 815 (1991); McClendon v. Soos, 18 Conn. App. 614, 618, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989); Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Those cases, however, do not control this situation. In those cases, notice to the insurance company, which had no right of action to protect, was held to be insufficient [526]*526under the statute. Johndrow v. State, supra, 721; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. The important issue was that the nonparty that had a right of action to protect be notified of the suit. Johndrow v. State, supra, 721; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. Because the nonparty identified in the statute had not received notice, the statute had not been satisfied. Johndrow v. State, supra, 721-22; McClendon v. Soos, supra, 618; Misiurka v. Maple Hill Farms, Inc., supra, 384. In this case, conversely, the nonparty did receive notice: the plaintiff employee was notified of the suit and given ample opportunity, even encouraged, to protect his rights. He now suffers from his own failure.

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Bluebook (online)
642 A.2d 51, 34 Conn. App. 521, 1994 Conn. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reichert-v-sheridan-connappct-1994.