STEPHEN J. LEONETTI
Argued, March 11, 2015
Action to recover damages for, inter alia, civil theft and fraud arising out of the defendant's alleged breach of an employment termination agreement, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the defendant filed a counterclaim; thereafter, the court, Shapiro, J., denied the defendant's motion for summary judgment; subsequently, the court denied the defendant's motion to reargue, and the defendant appealed to this court; thereafter, the court granted the plaintiff's motion for summary judgment on the counterclaim and rendered judgment thereon, and the defendant filed an amended appeal.
The plaintiff sought to recover damages from the defendant, its former employee, for, inter alia, civil theft and fraud arising out of the defendant's alleged breach of an employment termination agreement. Specifically, the plaintiff alleged that the defendant committed fraud and violated the termination agreement by continuing to pursue a preexisting workers' compensation claim after he had agreed to release all legal claims against the plaintiff in exchange for a certain payment from the plaintiff. In response, the defendant filed a counterclaim alleging that, by initiating the present action, the plaintiff had committed litigation misconduct by violating the statute (§ 31-290a) prohibiting retaliation against employees for exercising rights secured under the Workers' Compensation Act (§ 31-275 et seq.). Thereafter, the trial court granted the plaintiff's motion for summary judgment on the defendant's counterclaim concluding that it was premature and could not be brought until the plaintiff's underlying action had concluded. On the defendant's appeal, held that the trial court properly granted the plaintiff's motion for summary judgment on the defendant's counterclaim because the counterclaim was premature in that it was premised solely on the plaintiff's alleged litigation misconduct and the underlying action had not concluded; this court concluded, upon plenary review and in reliance on our case law on vexation litigation and abuse of process claims for guidance on the issue of whether a § 31-290a claim may be brought as a counterclaim in the same action in which the retaliation occurred, that a claim under § 31-290a, when premised solely on litigation misconduct, rather than on conduct outside of the judicial process, may not be brought prior to the termination of the underlying litigation.
Kathleen Eldergill, for the appellant (defendant).
John R. Horvack, Jr., with whom, on the brief, was John L. Cordani, Jr., for the appellee (plaintiff).
Gruendel, Alvord and West, Js.
[158 Conn.App. 178] This case raises the question of whether a claim of civil retaliation, under General Statutes § 31-290a, alleging discrimination by an employer against an employee for filing a claim under the Workers' Compensation Act (act), General Statutes § 31-275 et seq., can be filed as a counterclaim in the same action in which the alleged litigation misconduct arose. The defendant, Stephen J. Leonetti, appeals from the summary judgment rendered by the trial court in favor of the plaintiff, MacDermid, Inc., with regard to
the defendant's counterclaim. Specifically, the defendant argues that the court improperly concluded that his counterclaim was premature because it alleged litigation misconduct by the plaintiff in the same underlying action. The court concluded that the plaintiff's case must be resolved before the defendant can raise a claim of litigation misconduct against the plaintiff. On this issue of first impression, we conclude that a claim under § 31-290a, when premised solely on litigation misconduct, rather than on conduct outside of the judicial process, may not be brought prior to termination of the underlying litigation. Accordingly, we affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff employed the defendant for approximately twenty-eight years. The defendant's employment was terminated in November, 2009. On February 2, 2010, the plaintiff and [158 Conn.App. 179] the defendant entered into a termination agreement which stated, in part, that the plaintiff would pay the defendant $70,228.51, and the defendant would release all legal claims that he had or might acquire against the plaintiff. At the time the agreement was signed, the Workers' Compensation Commissioner (commissioner) had not approved the agreement as a " voluntary agreement" or stipulation as required by General Statutes § 31-296.
After a formal hearing, " [t]he commissioner . . . found that, without approval by a commissioner, the agreement did not effectively waive the parties' rights and obligations under the act . . . [and] that the agreement should not be approved as a full and final stipulation of the [defendant's] workers' compensation claim. . . . The plaintiff appealed from the commissioner's decision to the Workers' Compensation Review Board (board), which affirmed the commissioner's decision. . . . Thereafter, the plaintiff appealed from the decision of the board to the Appellate Court and filed the present action in Superior Court alleging civil theft, fraud, unjust enrichment, and conversion, premised on the defendant's admission that he never intended to release his workers' compensation claim. . . . [T]he plaintiff seeks, inter alia, rescission of the agreement, return of the $70,228.51 it paid the defendant under the agreement, and damages. In response, the defendant filed a counterclaim alleging that the plaintiff violated § 31-290a by initiating the present action solely in ...