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Graham v. Olson Wood Associates, Inc.

Supreme Court of Connecticut

December 20, 2016


          Argued September 20, 2016

          Joseph J. Passaretti, Jr., with whom, on the brief, was Ryan D. Ellard, for the appellant (defendant Connecticut Insurance Guaranty Association).

          Christopher Meisenkothen, with whom was Catherine Ferrante, for the appellee (plaintiff Carmel Graham).

          Diane D. Duhamel, with whom, on the brief, was Denise L. Morelli, for the appellees (defendant F.D. Rich Housing Corporation et al.).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.


          ROBINSON, J.

         In this appeal, we consider whether a Workers' Compensation Commissioner may reinstate an employer or insurer as a party to proceedings pending on the asbestos docket of the Workers' Compensation Commission (commission) when the claim against that party was dismissed prior to a determination of the claimant's compensability or date of final exposure. The defendant Connecticut Insurance Guaranty Association (association), [1] appeals[2] from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Eighth District (commissioner)[3]granting motions joined by the plaintiff Carmel Graham[4]and the defendants F.D. Rich Housing Corporation (F.D. Rich) and The Hartford Insurance Group (The Hart-ford)[5] to reinstate the association as a party to proceedings brought pursuant to the Workers' Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the association claims that the commissioner improperly reinstated it to the proceedings because: (1) in the absence of a timely appeal to the board, the order dismissing the claim against the association was a final decision entitled to res judicata effect pursuant to General Statutes §§ 31-300[6] and 31-301 (a);[7] and (2) the motions to reinstate the association did not satisfy the standards necessary to open an award pursuant to General Statutes § 31-315.[8] We conclude that the commissioner properly reinstated the association as a party to the underlying proceedings because the commissioner's broad case management authority under General Statutes § 31-298, [9] which extends to cases on the asbestos docket involving the apportionment of liability under General Statutes § 31-299b, [10] permitted him to render a dismissal that was provisional, rather than final, in nature. Accordingly, we affirm the decision of the board.

         The record reveals the following undisputed facts and procedural history. In 2006, the plaintiff's decedent, John Graham (decedent); see footnote 4 of this opinion; filed several notices of claim on form 30C with the commission, alleging that he had sustained a lung injury from exposure to asbestos while working for several different employers, including F.D. Rich. The commission assigned the decedent's claims to its asbestos docket for adjudication, after which several informal and preformal hearings took place. After the decedent died in 2008, the plaintiff, his widow, filed a claim for dependent benefits in 2009 that was joined with the original claims.

         Subsequently, Reliance Insurance Company (Reliance), one of F.D. Rich's workers' compensation insurance carriers, became insolvent, and its liability transferred statutorily to the association. See footnote 1 of this opinion. On January 26, 2011, the commissioner conducted a formal hearing that was attended by numerous attorneys representing the decedent's various employers and their respective workers' compensation carriers, along with the association.[11] The commissioner stated that the purpose of the formal hearing was to ‘‘clear the room of who doesn't need to be here and then we will get to the meat of the case at the next session.'' At that hearing, six of the employers, along with the association, moved to dismiss the claims against them for lack of exposure. With no objection from the plaintiff, the commissioner issued a ‘‘revised finding and decision'' on June 9, 2011, which granted these motions to dismiss.

         On November 29, 2012, the commissioner conducted another formal hearing. At that hearing, five of the decedent's other employers and their respective insurers moved to dismiss the claims against them, three of which were granted with the plaintiff's consent. The commissioner then advised counsel for the association, who was present at the hearing as a courtesy to the commission, that: ‘‘I think we need to bring [the association] back in, and . . . you will be on the notice for the next hearing.'' At that hearing, counsel for The Hartford stated that he had reviewed the record and questioned whether the decedent had any claim arising from a very brief period of employment in the first quarter of 1977, during which The Hartford insured F.D. Rich. Counsel for The Hartford stated that his reading of the record ‘‘[involved the association again] as a potential party [defendant] and indeed . . . potentially a lead [defendant] under [§ 31-299b].'' He asked whether the plaintiff would need further participation from The Hartford, observing that, ‘‘if I drop out, then all the more reason for [the association] to become [involved again].'' After some additional discussion, counsel for The Hartford agreed to file a motion to dismiss to which the plaintiff could respond after reviewing the record. The commissioner advised counsel for the association that an official request to cite the association back into the proceedings would be forthcoming.

         Subsequently, on February 6, 2013, the plaintiff filed a motion asking that the association be ‘‘cited back into this claim as a [defendant], '' in which she contended that the order dismissing it was ‘‘interlocutory and provisional and . . . not an adjudication on the merits of the [plaintiff's] claims or [the association's] defenses.'' The plaintiff stated that The Hartford had filed a motion to dismiss for lack of causative exposure that, if successful, would have ‘‘implicated'' the association under § 31-299b because the ‘‘next carrier on the risk would [have been] an insolvent carrier, '' namely, Reliance. On February 14, 2013, The Hartford filed a similar motion, joined by F.D. Rich, seeking to reinstate the association to the proceedings in light of The Hartford's pending motion to dismiss. The association opposed these motions. On January 29, 2014, the commissioner heard arguments from the parties on these motions at a formal hearing.

         On February 4, 2014, the commissioner granted the motions by the plaintiff and The Hartford to reinstate the association as a party to the case, rejecting the association's argument that the order dismissing it from the case was a ‘‘binding judgment and that, absent an appeal [to the board] within [twenty] days, it can only be undone by application of [§] 31-315.'' Specifically, the commissioner rejected the association's reliance on res judicata principles, observing that the record contained no evidence, findings, or formal stipulations that the association ‘‘had no liability to the [plaintiff].''[12]He emphasized that, in ‘‘asbestos cases there are often so many potential [defendants] that the administrative preference for ‘culling the herd' prior to a formal hearing is understandable. However, until the date of last exposure has been determined-and with it the identity of the party against whom an award would be made under [§] 31-299b-agreements to let out certain parties must be viewed as interlocutory.'' The commissioner further observed that bringing the association back into the case would not prejudice it or any other party because no exhibits had yet been admitted, the association reserved its right to recall the only witness who had testified, namely, the plaintiff, and the association ‘‘will be granted reasonable time to prepare for [the] continuation of the formal hearing.''[13]

         The association appealed from the commissioner's decision to the board. Acknowledging that, ‘‘over the years, certain procedural customs and conventions have evolved [that] are unique to the management of the asbestos docket, '' the board concluded that the governing statutes ‘‘provide the framework for assessing the merits of a claim, '' and that a ‘‘close reading'' of § 31-299b ‘‘indicates quite clearly that the legislature intended that the apportionment of liability among the various [defendants] in these claims can only occur after the conclusion of litigation on the merits of the underlying claim.'' (Emphasis in original.) The board, therefore, agreed with the commissioner's conclusion that, ‘‘until the date of last exposure has been deter-mined-and with it the identity of the party against whom an award would be made under [§] 31-299b- agreements to let out certain parties must be viewed as interlocutory.'' (Internal quotation marks omitted.) To this end, the board concluded that it did not matter whether the hearing at which the association's motion to dismiss was granted was ‘‘formal'' or ‘‘informal, '' insofar as the ‘‘actual language'' of § 31-299b contemplates apportionment only after the adjudication on the merits of the underlying claim.[14] (Emphasis omitted; internal quotation marks omitted.) The board determined that the record demonstrated that the underlying merits of the plaintiff's claim, including compensability, had not yet been adjudicated at the time of the order dismissing the association. The board further observed that ‘‘[t]o allow a party to escape liability prematurely because of a procedural irregularity, thereby potentially thwarting an injured claimant's ability to collect an award of benefits, not only does violence to the plain meaning of the statute but also clearly runs counter to the remedial nature and humanitarian purpose of the [act].''[15] Accordingly, the board affirmed the commissioner's decision granting the motions to reinstate the association as a party to this case. This appeal followed. See footnote 2 of this opinion.

         On appeal, the association claims that, under §§ 31-300 and 31-301 (a), the failure, by the plaintiff and The Hartford, to appeal to the board rendered the commissioner's dismissal a final judgment. The association argues that the board's decision allowing it to be reinstated as a party ‘‘circumvented'' §§ 31-300 and 31-301 (a), even assuming that § 31-299b does not allow for dismissals of claims against apportionment respondents prior to a formal adjudication as a matter of law. The association contends that the board's characterization of the previous proceedings as having ‘‘ ‘merely excus[ed] [the association] by agreement' is a wild mis-characterization, '' insofar as there was a formal hearing at which all parties had the opportunity to participate. The association further contends that the plaintiff's decision not to challenge its motion to dismiss was in effect a ‘‘[surrender] of [the] claim against'' it, and that the board's decision has the effect of creating ‘‘different tiers of formal proceedings . . . .'' Addressing an issue not reached by the board; see footnote 15 of this opinion; the association also argues that the commissioner improperly invoked § 31-315, which governs motions to open or modify awards, to support his decision to cite the association back into the case. Specifically, the association posits that § 31-315 does not support the commissioner's decision to reinstate it as a party because no conditions of fact changed between its dismissal and reinstatement.

         In response, the plaintiff contends, inter alia, that ‘‘[t]he fluidity with which [defendants] are cited into and dismissed from asbestos disease claims is properly within the procedural discretion of the commissioners, '' and is consistent with the remedial purpose of the act, which is to provide a simple and efficient procedure that effectuates ‘‘the sole remedy for employees and their dependents for work-related injuries and death.'' Green v.General Dynamics Corp., 245 Conn. 66, 71, 712 A.2d 938 (1998). The plaintiff also relies on § 31-298, which provides that the commissioner is not bound by ‘‘ordinary common law or statutory rules of evidence or procedure, '' to argue that a motion to dismiss before the commission is not identical, for purposes of finality, to a motion to dismiss filed in the Superior Court. To this end, the plaintiff relies on the customary deference afforded to the board's construction of the act, and argues ...

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