Collette v. Forgotch

Jeremy Collette v. Matthew C. Forgotch et al

No. HHDCV156056303S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

September 13, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#135)

Sheila A. Huddleston, Judge.

This is a common-law action arising out of a work-related accident. The plaintiff, Jeremy Collette, alleges that he was struck by a Bobcat owned by his employer, defendant Bill's Landscaping, LLC, and operated by his co-worker, defendant Matthew C. Forgotch. In count one, the plaintiff alleges that Forgotch negligently operated a motor vehicle, and in count four, that Forgotch recklessly operated a motor vehicle invoking the double or treble damages provision of General Statutes § 14-295. Pending before the court is Forgotch's motion for summary judgment. Forgotch argues that the Workers' Compensation Act bars both counts against him as the plaintiff's fellow employee. He claims that the exception for negligent operation of a motor vehicle does not apply because a Bobcat is not a motor vehicle as defined by statute and that the recklessness claim is barred because the plaintiff has not alleged that Forgotch intended the injury to him. The plaintiff argues that the exceptions to the exclusivity of the Workers' Compensation Act apply. For the reasons stated below, the court agrees with the defendant, and summary judgment is granted.

FACTS

The plaintiff's complaint arises out of an incident that occurred at about 2:30 a.m. on December 30, 2012. The plaintiff alleges that he was clearing snow in the course of his employment with Bill's Landscaping. As he was working, the plaintiff approached the rear of one of the company's vehicles and suddenly, and without warning, was struck by another company vehicle, a 2008 Bobcat, operated by Forgotch. The plaintiff was pinned between the Bobcat and a truck operated by another co-worker, defendant Christopher M Levesque, causing the plaintiff to suffer severe and debilitating injuries. In count one, the plaintiff alleges that Forgotch was negligent in the operation of the Bobcat in twelve respects. In count four, he alleges that Forgotch operated the vehicle with reckless disregard and in violation of General Statutes § 14-218a (operating at unreasonable speed), § 14-222 (operating recklessly), and § 14-227a (operating while impaired by intoxicating liquor and/or drugs).^[1]

On November 2, 2015, Forgotch moved for summary judgment as to counts one and four. Attached to his memorandum of law in support of the motion were affidavits by William Guzie, owner of Bill's Landscaping, and Sharon Geanuracos, legal counsel to the Department of Motor Vehicles. On January 4 2016, the plaintiff filed an objection to Forgotch's motion. On January 28, 2016, Forgotch filed a reply to the plaintiff's objection and attached his affidavit as an exhibit. The matter was heard at short calendar on May 31 2016.

DISCUSSION

" [S]ummary 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 . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

Forgotch argues that his motion for summary judgment as to counts one and four should be granted for the following reasons: 1) workers' compensation is the plaintiff's exclusive remedy for an injury alleged to have been caused by a fellow employee pursuant to the " fellow-employee bar" rule, General Statutes § 31-293a; 2) Forgotch was not operating a " motor vehicle" at the time of this subject incident so as to bring this case within the " motor vehicle" exception to the " fellow-employee bar" rule; and 3) Forgotch's actions with respect to the subject incident were not wilful or malicious so as to bring this case within the other enumerated exception to the " fellow-employee bar" rule. The plaintiff counters that Forgotch's motion should be denied because genuine issues remain as to whether the 2008 Bobcat that Forgotch was operating at the time of the accident was operated at a worksite and whether Forgotch was operating the 2008 Bobcat in a manner that was wilful or malicious within the definition of General Statutes § 31-293a.

Section 31-293a provides in relevant part: " If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors' mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not 'motor vehicles' if the claimed injury involving such equipment occurred at the worksite on or after October 1, 1983." (Emphasis added.)

Count One: Negligence

Forgotch argues that summary judgment should be granted because he was not operating a motor vehicle at the time of the incident so as to bring this case within the " motor vehicle" exception of § 31-293a. The plaintiff counters that the motion should be denied because a genuine issue remains as to whether the injury occurred at a worksite.

" [T]he definition of motor vehicle for purposes of the motor vehicle exception to § 31-293a is controlled by the definition of motor vehicle in General Statutes § 14-1 . . Section 14-1(53) defines a motor vehicle as any vehicle propelled or drawn by any nonmuscular power, except . . . special mobile equipment as defined in section 14-165 . . . and any other vehicle not suitable for operation on a highway . . . Finally, General Statutes § 14-165(9) defines special mobile equipment as a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including, but not limited to, ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, street sweepers, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment. The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached . . ." (Citation omitted; emphasis altered; internal quotation marks omitted.) Abendroth v. Moffo, 156 Conn.App. 727, 734, 114 A.3d 1224, cert. denied, 317 Conn. 911, 116 A.3d 309 (2015).

In the present case, Forgotch submitted an affidavit of William Guzie, the owner of Bill's Landscaping. In his affidavit he avers the following. The Bobcat is used to move material at a job site, excavate, load material, back blade and back drag. The Bobcat has a hydraulic system including a hydraulic lift arm, a single seat for the operator, and joystick controls for steering and maneuvering. The Bobcat was not a registered vehicle, not capable of sustainable speed of forty miles per hour, and did not have turn signal lights, a rearview mirror, a steering wheel, fenders, or an exhaust system.

Forgotch also submitted the affidavit of Sharon Geanuracos, legal counsel to the Department of Motor Vehicles, who stated that a Bobcat would be considered " special mobile equipment" as defined in § 14-165(9) if it was equipped with four wheels, a hydraulic system with a hydraulic lift arm, a single seat for the operator and joystick controls for steering and maneuvering, and was without turn signals, rearview mirrors, a steering wheel stop lights, parking lights on the left side in the rear, brakes on all wheels, an exhaust system that exhausts behind the driver's seat, fenders or other wheel protectors, and that it was used primarily to excavate, load material, back blade and back drag and was not designed for the transportation of persons or property and only incidentally operated over a highway. Based on this information, Forgotch has met his burden of showing that there is no genuine issue of material fact that the Bobcat would be classified as special mobile equipment. See General Statutes § 14-165(9); see also Abendroth v....