636 A.2d 383
(12089) (12090)Appellate Court of Connecticut
O’CONNELL, FOTI and LANDAU, Js.
The plaintiff P sought to recover for injuries he sustained in a fall on a stairway in a building owned by the defendant J Co. He alleged both common law negligence and a statutory (29-389 and 29-391) cause of action arising out of J Co.’s failure to provide a safe stairway. The plaintiff’s employer, S Co., intervened in the action to obtain reimbursement of workers’ compensation benefits it had paid to P. The trial court granted J Co.’s motions for summary judgment on both the complaint and the intervening complaint, and the plaintiff and S Co. appealed to this court. Held: 1. The trial court properly determined that 29-389 and 29-391 were not applicable to the facts here; the plain language of those statutes makes it clear that they are concerned only with emergency stairways and unobstructed escape routes from buildings in cases of fire and other emergencies, and there was no fire or other emergency at the time P was injured. 2. S Co. could not prevail on its claim that the trial court improperly applied to its claim the two year statute of limitations (52-584)
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applicable to negligence actions rather than the three year general tort statute of limitations (52-577); P’s cause of action was governed by 52-584 and S Co.’s right to reimbursement, being derivative of P Co.’s cause of action, was governed by the same statute of limitations and barred by its failure to file suit in a timely manner.
Argued October 26, 1993
Decision released January 18, 1994
Action to recover damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants, brought to the Superior Court in the judicial district of New Haven, where the court, Flanagan, J., granted the motion by the plaintiff’s employer to intervene as a party plaintiff; thereafter, the court, Pellegrino, J., granted the defendant J.M.H. Associates’ motion for summary judgment against the named plaintiff; subsequently, the court, Maiocco, J., granted the defendant J.M.H. Associates’ motion for summary judgment against the intervening plaintiff and rendered judgment in favor of the defendant J.M.H. Associates, from which the plaintiffs filed separate appeals to this court. Affirmed.
David A. Leff, for the appellant (named plaintiff).
Joel M. Fain, with whom, on the brief, was Andrew H. Sharp for the appellant (intervening plaintiff).
Lawrence A. Ouellette, Jr., with whom, on the brief, was Rene G. Martineau, for the appellee (defendant J.M.H. Associates).
FOTI, J.
The plaintiff, Samuel Packtor, and the intervening plaintiff, Stop Shop Companies, each appeals from the judgment rendered following the trial court’s granting of two separate motions for summary judgment[1]
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filed by the defendant J.M.H. Associates.[2] We affirm the judgment of the trial court.
Packtor was injured in a fall on September 13, 1987, while climbing the second floor stairway, described as a “ship’s ladder,” in the Stop Shop store at 255 East Main Street, Clinton, where he was employed. J.M.H. Associates owned the building and leased it to Stop
Shop. In an action returnable August 21, 1990, Packtor brought suit for damages against the owner of the building and the contractor who had constructed the stairway. Stop Shop filed a motion to intervene pursuant to General Statutes 31-293(a)[3] for reimbursement
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of workers’ compensation payments made to its employee, Packtor, for injuries arising out of and in the course of his employment. It is uncontested that the intervention occurred within thirty days of notice as required by 31-293. The motion was granted and Stop Shop filed an intervening complaint on October 9, 1990.
On December 2, 1991, J.M.H. Associates filed a motion for summary judgment as to the third and fourth counts of Packtor’s complaint. J.M.H. Associates challenged Packtor’s third count, which sounded in common law negligence, as time-barred by the two year limitation period of General Statutes 52-584. Packtor’s fourth count alleging a statutory cause of action pursuant to General Statutes 29-389[4] and
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29-391[5] was challenged because the injury alleged was not the type of injury that the statutes were intended to prevent. In a memorandum of decision filed April 23, 1992, the trial court, Pellegrino, J., granted the summary judgment on both counts. Packtor now appeals challenging that decision.[6]
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On May 29, 1992, J.M.H. Associates filed a separate motion for summary judgment as to Stop Shop. The motion was granted by the trial court, Maiocco, J., in a memorandum filed on January 5, 1993. The trial court ruled that because Packtor’s claim was barred by the statute of limitations, Stop Shop’s derivative right to reimbursement was likewise time-barred. Stop
Shop appeals challenging that decision. We will deal with the claims of the plaintiff and the intervening plaintiff separately.
I
Packtor claims only that the trial court improperly rendered summary judgment after concluding that General Statutes 29-389 and 29-391 did not apply to the facts and circumstances of this case. We do not agree.
The fourth count of Packtor’s complaint alleged that, as a result of the failure of the defendants to provide a suitable interior stairway as mandated by General Statutes 29-389, Packtor was injured and entitled to damages pursuant to 29-391. The undisputed facts are that access to the second floor of the building was possible only by the stairway in question, that Packtor was ascending that stairway in the normal course of his duties when injured, and that there was no fire or other emergency at the time. We agree with the trial court that the meaning of 29-389 is plain and unambiguous. Both 29-389 and 29-391 are primarily concerned with emergency stairways and unobstructed escape routes from buildings, and injuries resulting from egress or “escape from such a building in case of fire or other emergency.”[7] (Emphasis added.) General
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Statutes 29-389. We note further that these statutes are found in Chapter 541 entitled “Building, Fire and Demolition Codes. Fire Marshals and Fire Hazards. Safety of Public and Other Structures.”
“Statutes are to be applied as their words direct. Connecticut Hospital Assn. v. Commission on Hospitals
Health Care, 200 Conn. 133, 141, 509 A.2d 1050
(1986).” River Dock Pile, Inc. v. O G Industries, Inc., 219 Conn. 787, 805, 595 A.2d 839 (1991). “`When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction. . . .'” Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). “The objective of statutory construction is to give effect to the intended purpose of the legislature. . . . It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary.” (Citations omitted; internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992), quoting Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991).
We conclude that in accordance with the plain language of 29-389 the trial court properly rendered summary judgment for the defendant as no factual predicate existed to sustain a statutory cause of action under this section.
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II A
Stop Shop first alleges that the trial court[8] improperly applied to its claims the two year limitation of General Statutes 52-584[9] rather than the three year general tort statute of limitations, General Statutes 52-577.[10] Stop Shop claims that it has an employer’s statutory cause of action, which survives the trial court’s ruling barring the employee’s remedy for a procedural deficiency. Further, it argues that its statutory cause of action is governed by the limitation in 52-577, which applies to actions founded on a tort.[11] Stop
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Shop argues that since Packtor was injured on September 13, 1987, and the intervening complaint is dated August 22, 1990, such intervention was within the three year limitation and, therefore, is not time-barred. We are not persuaded.
General Statutes 31-293 specifically grants an employer who has paid workers’ compensation benefits to an employee the right to join as a party plaintiff in the employee’s action against a third party tortfeasor. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). It is an independent derivative action. Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980). It is a statutory and substantive right to reimbursement that is “in effect one of subrogation to the right of the injured employee to recover for the tort committed against him.” Stavola v. Palmer, 136 Conn. 670, 677, 73 A.2d 831 (1950).[12]
An employer who has paid, or by award has become obligated to pay, compensation may also sue the third party in his own name directly for reimbursement. If either the employer or the employee sues the third party, the other is entitled to notice and an opportunity to join in the action. Enquist v. General Datacom, 218 Conn. 19, 23, 587 A.2d 1029 (1991). An employer’s “sole means to assert any right against the plaintiff’s third party recovery [is] by way of the procedure set forth in 31-293.” Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987).
We agree with Stop Shop that “it would be inequitable to bar an intervention action by an employer far no other reason than that the employee failed to file his or her action within the applicable period of limitation.”
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(Emphasis added.) We do not bar the employer on that ground.[13] The issue we must determine is whether the employer’s action is itself timely filed. In order to decide that question, we must first determine which statute of limitations governs the rights of an employer seeking to recover workers’ compensation benefits from a third party tortfeasor. Since an intervening employer’s statutory right to reimbursement depends on the liability of the third party to the employee, the statute of limitations applicable to the employer’s right of action must be the same as that governing the employee’s underlying action against the tortfeasor. See 101 C.J.S., Workmen’s Compensation 1014(b) (1958); 82 Am. Jur.2d, Workers’ Compensation 460 (1992); annot., 41 A.L.R.2d 1044, 2.
An employer has no cause of action unless the employee has a cause of action. Stavola v. Palmer, supra, 678. It may be argued that the employee in this case did have a valid cause of action, but that it was barred merely by a procedural failure on the employee’s part. The action is not barred, however, by the employee’s procedural failure but by the failure of the employer to bring suit in a timely manner. If the employer had initiated the action, it would not be prosecuting its own action, but the action of the employee. Therefore, it would be illogical to grant greater rights to an employer whose rights are derivative, than to the employee from whom those derivative rights flow.[14]
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In this case, the employee’s cause of action is limited by the personal injury statute of limitations found in General Statutes 52-584. Packtor’s injury occurred on September 13, 1987. Stop Shop did not initiate any action until it filed a motion to intervene on August 27, 1990, well beyond the two year statute of limitations. Stop Shop’s derivative right to reimbursement was, therefore, time-barred pursuant to 52-584.
B
Stop Shop also argues that General Statutes 29-389 and 29-391 are applicable to the injury sustained by Packtor, that the defendants failed to provide two suitable remote means of egress, that the statutes are not limited to injuries sustained in fires or other emergencies, and that they do not require a person to be exiting a building when injured.
For the reasons stated in part I of this decision, we do not agree.
The judgment is affirmed.
In this opinion the other judges concurred.