§ 31-293 — Liability of third persons to employer and employee. Limitations on liability of architects and engineers. Limitations on liability of insurers, self-insurance service organizations and unions relating to safety matters.

Connecticut § 31-293

• Jurisdiction: Connecticut
• Title 31: Labor
• Ch. 568: Workers' Compensation Act

Text

(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys' fees, incurred by the employee in effecting the recovery. If the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second Injury Fund. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the administrative law judge thereafter deems payable to the injured employee. If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word “compensation”, as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages. Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit, and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement. (b) When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers' compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer's workers' compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation. (c) Notwithstanding the provisions of subsection (a) of this section, no construction design professional who is retained to perform professional services on a construction project, or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project, shall be liable for any injury on the construction project for which compensation is payable under the provisions of this chapter, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications. For the purposes of this subsection “construction design professional” means (1) any person licensed as an architect under the provisions of chapter 390, (2) any person licensed, or exempted from licensure, as an engineer under the provisions of chapter 391, or (3) any corporation organized to render professional services through the practice of either or both of such professions in this state. (d) Notwithstanding the provisions of subsection (a) of this section, the furnishing of or the failure to furnish safety inspections or safety advisory services (1) by an insurer incident to providing workers' compensation insurance to an employer, (2) pursuant to a contract providing for safety inspections or safety advisory services between an employer and a self-insurance service organization incident to providing workers' compensation related services or (3) by a union representing employees of the employer, shall not subject the insurer or self-insurance service organization or their agents or employees, or the union, its members or the members of its safety committee, to third party liability for damages for injury, death or loss resulting therefrom unless the liability arises from a breach of a duty of fair representation of its members by a union. The immunity from liability extended under this subsection shall not be extended to any insurer or self-insurance service organization other than where the immunity is incident to the provision of workers' compensation insurance or workers' compensation related services.

Legislative History

(1949 Rev., S. 7425; 1949, 1951, S. 3040d; 1958 Rev., S. 31-156; 1961, P.A. 491, S. 15; 1967, P.A. 692, S. 4; 842, S. 27; P.A. 86-266, S. 1; P.A. 90-145; P.A. 91-32, S. 9, 41; 91-191, S. 2, 3; P.A. 93-228, S. 7, 35; P.A. 96-65, S. 2; P.A. 11-205, S. 1; P.A. 21-18, S. 1.) History: 1961 act entirely replaced previous provisions; 1967 acts allowed employer to be party plaintiff in cases where employee brings an action against a third party, specified that bringing action against employer does not constitute notice and increased burial fee from $500 to $1,000; P.A. 86-266 added Subsec. (b), limiting the civil liability of certain architects, engineers and their employees for injuries compensable under workers' compensation which occur on construction projects; P.A. 90-145 added Subsec. (c) concerning limitations on the liability of insurers, self-insurance service organizations and unions in relation to safety inspections and safety advisory services; P.A. 91-32 made technical changes; P.A. 91-191 amended the definition of “compensation” in Subsec. (a) to include payments made under Sec. 31-284b in certain cases; P.A. 93-228 amended Subsec. (a) to specify required contents of employees' complaints against third parties and to give employers liens on judgments or settlements paid by third parties to employees, added new Subsec. (b) to prohibit insurers from adjusting employers' workers' compensation insurance rates if payments made by insurers will be recovered from negligent third party, and redesignated existing Subsecs. (b) and (c) as (c) and (d), respectively, effective July 1, 1993; P.A. 96-65 amended Subsec. (a) to make technical changes for consistency and to include references to the custodian of the Second Injury Fund and employers who fail to comply with Sec. 31-284(b); P.A. 11-205 amended Subsec. (a) to add provision re right of action of parties that do not join as parties plaintiff to abate “unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection” and add provision re reduction of claim of employer by one-third of amount of benefits to be reimbursed to the employer if action has been brought by employee, effective July 1, 2011; pursuant to P.A. 21-18, “commissioner” was changed editorially by the Revisors to “administrative law judge” in Subsec. (a), effective October 1, 2021. If employee settles with tortfeasor, employer may accept the settlement and have credit for the amount received. 92 C. 398. Right of an insurer to recover from tortfeasor who has settled with employee direct. 101 C. 200. Form of judgment in suit by both employee and employer against tortfeasor; “reasonable attorney's fee” may be nothing. 104 C. 507. That employer was “subsidiary” of third party not a defense. 112 C. 510. Cited. 114 C. 130. Injured person who receives compensation may still sue doctor for malpractice. 115 C. 563. Where employer pays compensation in death case, he is entitled to reimbursement out of judgment obtained by administratrix from third party. 116 C. 91. Cited. 123 C. 514; 124 C. 230. Statute applied where employee injured by fellow employee. 125 C. 293. Cited. 128 C. 521; 129 C. 637; 132 C. 545. Liability for compensation after judgment against third party. Id., 671. Cited. 133 C. 448. Not necessary to make administratrix of deceased employee a party; employer's rights discussed. 136 C. 670. Cited. 143 C. 77. Contains no exception for a situation wherein employer is reimbursed from a judgment obtained against a third party tortfeasor. 144 C. 322. Cited. 150 C. 211. Employer's time to intervene does not begin to run until notice of the action is given to him. 154 C. 708. By stipulation approved by commissioner, employer effectively released “any further claims under the Workmen's Compensation Act” including right to recover from third parties. 157 C. 538. Cited. 160 C. 482. No standing to appeal on behalf of plaintiff's employer's participation. 163 C. 365. Cited. 176 C. 622; 181 C. 321; 182 C. 24; 183 C. 508; 192 C. 460; 193 C. 59; Id., 297; 204 C. 485; 208 C. 589. Notice in compliance with statute need not include information re right of intervention and legal consequences of failure to intervene within statutory time period. 216 C. 533. Employer entitlement to a credit for unknown future benefits against the net proceeds of a third party recovery discussed. 218 C. 19. Cited. Id., 46; Id., 531; 219 C. 439; 222 C. 744. Third party tortfeasor may not raise the negligence of employer as a special defense when employer has intervened in personal injury action as party plaintiff in order to secure his statutory right to reimbursement of workers' compensation benefits. Id., 775. Cited. 224 C. 382; 225 C. 915. Notice under section does not require specific reference to employment relationship. 230 C. 100. Cited. Id., 914; 232 C. 918; 233 C. 251; 236 C. 330; 241 C. 170; 242 C. 375. In order for abatement provision to be invoked, notice given pursuant to section must comport with both the statutory requirements and the due process clause. Id., 432. Section authorizes injured employee to seek recovery from third party, other than employer, for work-related injuries caused by that third party. 247 C. 442. City employer's right to intervene in employee's negligence action against physician is incorporated into Sec. 7-433c pursuant to this section. 253 C. 429. Relevant figure for determining whether to award interest under Sec. 52-192a is amount of the jury verdict, not amount of the postapportionment judgment rendered pursuant this section. 264 C. 314. Cited. 3 CA 450; 9 CA 194; 11 CA 391; 15 CA 381; 16 CA 138; 18 CA 614; 21 CA 9; judgment reversed, see 218 C. 46; Id., 270; judgment reversed, see 218 C. 19; 22 CA 539; judgment reversed, see 219 C. 439; 24 CA 531; Id., 719; Id., 739; 25 CA 492; judgment reversed, see 222 C. 744; 29 CA 618; 33 CA 422; 34 CA 521; 36 CA 635; judgment reversed, see 236 C. 330; 37 CA 423. Because employer and its compensation insurance carrier did not bring action pursuant to section, they were not entitled to a credit and were obligated to pay plaintiff's hospital bill. 42 CA 200. Cited. 46 CA 712. Section does not entitle employer to make a claim against any benefits that might be due to an employee under uninsured motorist provisions of employer's policy. 53 CA 452. Definition of “compensation” inapplicable to Sec. 31-284b as it existed on date of plaintiff's injury. 61 CA 9. State does not waive its right to sovereign immunity and subject itself to a counterclaim when intervening pursuant to statute when state's claim is derivative, depends on injured plaintiff recovering against defendant and does not enlarge defendant's liability or try to establish that defendant is liable to the state. 65 CA 418. Section does not confer authority on commissioner to dictate the appropriate terms of third party settlement allocations and employer lacks statutory aggrievement to challenge such allocation. 138 CA 812. Since the right is a substantive one, it does not matter that the exact method prescribed by section has not been followed. 4 CS 5. Plaintiff employer is required to join as coplaintiff and if he does not, his right of action abates. 5 CS 108. Cited. 6 CS 152. Purpose of statute is fulfilled if the rights of employer as well as employees are determined in one action and an allowance of a motion by employer to join as a codefendant does not constitute a judgment or settle a question of fact. 9 CS 68. Right of employer is not one for a wrong done to employee but one conferred by statute. 10 CS 508. Statute requires that employee give employer formal notice; it is not enough that employer has knowledge of the existence of a pending action. 12 CS 325. Available only to employer who has paid or is obligated to make payments under act. 17 CS 69. Defendant employer and its insurer are not required to intervene in employee's representative's suit against the tortfeasor within the 1-year statutory period. 20 CS 30. Where employer brings action against third person within time limited by statute and employee, within 30 days after institution of suit, has moved to join, fact that motion was filed more than year after tortious act took place would not defeat motion. 23 CS 106. Cited. 27 CS 383. Demurrer to complaint sustained in third party action by employee against employer's insurance carrier; duties under act merge identities of employer and his insurer. 28 CS 1. Cited. 30 CS 126. Statute contains no authorization for suit against employee; time limitation, within which right must be enforced, is limitation of liability itself and not of remedy alone. 33 CS 661. “Shall abate” provision does not apply to employee's entire cause of action but only to extent it has previously been prosecuted by employer; not required that defense be by plea in abatement. 35 CS 60. Comparative negligence of employee is a defense in an action by employer against a third party. 36 CS 137. Cited. Id., 317. Comparative negligence apportionment between employer and employee of sums received from third party; public policy discussed. 39 CS 222. Cited. 40 CS 165. Cited. 6 Conn. Cir. Ct. 671. Subsec. (a): Cited. 211 C. 133; 217 C. 631. Employer credit to extent of third party recovery may be awarded by workers' compensation commission. 218 C. 46. Cited. 221 C. 465; 224 C. 8. Sec. 13a-149 does not bar employer from seeking reimbursement under this section. 231 C. 370. Cited. Id., 381. Language of section does not indicate that service must have been completed before notice can be sent; judgment of Appellate Court in 36 CA 635 reversed. 236 C. 330. Does not apply to uninsured motorist coverage. 242 C. 375. Cited. Id., 432. Applicable statute of limitations on underlying claim is tolled if employer receives notice of an employee's timely filed action against a third party tortfeasor and intervenes within 30-day period prescribed by statute. 246 C. 156. Employer has cause of action under section that is separate and distinct from that of its injured employee. 247 C. 442. “Compensation” in section includes sums paid pursuant to voluntary settlement agreement authorized by Sec. 31-296. 259 C. 325. Term “injury”, as used in Subsec., does not encompass the harm alleged by plaintiff in his legal malpractice action because it is unrelated to plaintiff's work; “third person” to which Subsec. refers is person in whom a legal liability has been created to pay damages for the employee's work-related injury; “third person”, as used in Subsec., refers to the actual tortfeasor who caused the work-related injury. 269 C. 507. Subsec. does not confer standing on an employer to challenge the allocation of proceeds of a settlement between its injured employee and the third party tortfeasor. 292 C. 86. Employer that pays workers' compensation benefits to injured employee is entitled to reimbursement for those payments from “any damages” that employee may recover from the third party tortfeasor, including an award that consists solely of noneconomic damages; “compensation” includes loss of use payments, because public policy is that third party tortfeasor, and not the employer, shall be primarily responsible for bearing economic loss resulting from tortfeasor's negligence. 294 C. 357. Scope of employer's lien is coextensive with employer's claim under Subsec., and includes credit for unknown, future workers' compensation benefits in the amount of net proceeds that injured employee recovers from third party tortfeasor. 297 C. 391. Whether plaintiff voluntarily relinquished its legal rights by assenting to settlement is a question of fact for trial court to decide, and plaintiff's proposed distribution of settlement proceeds does not decide that issue by itself. 301 C. 405. The one-third portion of an employer's recovery that inures solely to the employee's benefit is not subject to the moratorium, and, as a result, the employer does not receive a credit against later arising benefits for such portion paid to the employee. 329 C. 564. Cited. 22 CA 27; judgment reversed, see 217 C. 631; 30 CA 263; Id., 801; 41 CA 664. Trial court improperly concluded that “reasonable and necessary expenditures” recoverable under Subsec. are the same as the enumerated fees and costs recoverable from an opposing party in a civil action; Subsec. leaves it to the discretion of the court to determine which expenditures are reasonable and necessary. 134 CA 112. In the absence of evidence that employer was misled or otherwise prejudiced by notice delivered to employer that incorrectly stated employer's name, notice satisfied statutory due process requirement that employees bringing actions for certain injuries “immediately notify” their employers of their lawsuits. 49 CS 412.