One hundred years ago, the ratification of the Connecticut

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1 TheDEFENSE VOL. 27 NUMBER 2 JOURNAL OF THE CONNECTICUT DEFENSE LAWYERS ASSOCIATION AUTUMN Years of Workers Compensation in Connecticut by Eamonn S. Wisneski One hundred years ago, the ratification of the Connecticut Workers Compensation Act ( WCA ) revolutionized the manner by which workplace injury claims are adjudicated in our state. The initial statutory framework has enjoyed a successful history measured both in terms of the positive initial changes brought about by the legislation, and by the relatively consistent application of the core statutory principles over the course of the past century. Connecticut Law Prior to the WCA Prior to the enactment of specific workers compensation laws, an injured Connecticut employee s only legal recourse against his or her employer was a tort-based lawsuit. Potential plaintiffs faced several daunting obstacles, however, in bringing such a claim. The expansive assumption of the risk doctrine precluded recovery if the unfortunate employee knew of any hazard of the job. Connecticut courts followed the traditional English rule that an employee cannot recover for an injury suffered in the course of his business from defective machinery, unless the employer knew or ought to have known the fact, and the employee did not know it or had not equal means of knowing it. Hayden v. Smithville Mfg. Co., 29 Conn. 548, 560 (1861). Although later statutory enactments required employers to exercise reasonable care to provide a reasonably safe place in which to work, the ThisISSUE 100 Years of Workers Compensation in Connecticut An Assessment of Wrongful Death Cases Decisions of Interest Click on any story title in the above list to go directly to that page. If you are connected to the internet, you can click on any image in this issue to see a higher resolution version, if available. assumption of the risk doctrine still presented a formidable challenge to potential plaintiffs. The fellow-servant doctrine also shielded Connecticut employers from potential tort liability. Under the existing common law, the rule that a master is not liable to a servant for an injury to him occasioned by the misconduct or negligence of a fellow-servant, has been so often recognized both in this country and in England that it must now be considered as settled law. Burke v. Norwich & Worcester R. Co., 34 Conn. 474, 479 (1867). Although our Supreme Court voiced displeasure with the strict application of this principle, it eventually decided that it was by then too firmly established as law by a multitude of decisions to be now reversed or seriously modified by any exercise of the power vested in courts. Nolan v. New York, N.H. & H.R. Co., 70 Conn. 159, 194, 39 A. 115 (1898). Finally, in addition to the more technical legal obstacles specific to workplace accident cases, injured employees had to consider practical limitations to pursuing civil litigation. As the court reasoned in Hayden, the tort-based system required that the employer had notice of the hazard. The injured workers were further hampered during civil litigation due to limited access to medical treatment for the subject injury, a partial or complete loss of income, and limited societal security mechanisms in place. Societal Change and the Triangle Shirtwaist Factory Fire Over time, societal changes dictated a change in the status quo. The increase in industrial jobs during the Second Industrial Revolution, including unproven technology and increasing worker density on job sites, resulted in a larger number of workers being placed in increasingly dangerous situations. In turn, this led to more serious losses, both in terms of severity and frequency of injuries. Germany was the first country to heed these changes, introducing the first workers compensation system in Other See Workers Compensation on Page 5

2 Page 2 Autumn 2013 The DEFENSE THE PRESIDENT S COLUMN by Rob Sickinger TheDEFENSE Published by the Connecticut Defense Lawyers Association P.O. Box 2114 Cheshire, CT ctdefenselawyers@gmail.com Telephone/fax (203) Editor Kirby G. Huget The Defense is the journal of the Connecticut Defense Lawyers Association and is devoted to issues related to the defense of civil actions. Inquiries should be directed to The Defense, CDLA, P.O. Box 2114, Cheshire, CT Connecticut Defense Lawyers Association Officers President: Robert J. Sickinger First Vice President: Robert J. Chomiak Second Vice President: Victoria Metaxas Secretary: Stuart C. Johnson Treasurer: Christopher M. Harrington Chairperson of the Board: James O. Craven Board of Directors Aubrey Ruta Blatchley Jennifer L. Booker Kerry Callahan Jennifer S. Das Stephen G. Murphy, Jr. M. Karen Noble James J. Noonan Paul T. Nowosadko John J. Robinson DRI Representative Richard A. Roberts Executive Director Kristen N. Mellitt It s hard to believe that 2013 is winding to an end and soon a new year will be upon us. Now is a good time to reflect on the accomplishments of the past year, and look forward to the challenges and opportunities that 2014 will bring. Our Annual Meeting this past June in Rocky Hill was a great success. Our keynote speaker, Judge Terry Zemetis, gave an inspiring speech on the virtues of the jury trial and the role that we as defense lawyers can play in preserving this essential piece of our democracy. The seminar on ethics for defense lawyers tackled the ethical challenges that we face on a daily basis in our defense practices. We proudly honored Attorney Jack Steigelfest with the President s Award for his years of committed service to our organization and the Connecticut legal community. A special thanks was also given to outgoing President Jim Craven for his steady stewardship at the helm of the CDLA in 2012/2013. We are looking forward to providing continued educational resources to our members and to serve as the voice of the defense bar in Connecticut. Our Fall Meeting will feature a seminar with a panel of accomplished appellate lawyers discussing the preservation of the record for appeal. We are especially pleased to have Chief Justice Chase Rogers speak to share her views on the future of civil litigation in Connecticut as she sets forth a revised strategic plan for the Connecticut Judicial Branch. We also are planning seminars on topics that can assist you in your practice. Future seminars will include topics on the SMART Act and how it will impact Medicare liens that can be so difficult in resolving cases. We are also looking forward to seminars this spring on Women in the Courtroom, as well as trial tactics for young lawyers. This fall we also submitted an Amicus Curiae brief in a well publicized malpractice case before the Connecticut Supreme Court. Despite our accomplishments, we also recognize that we must continue to strive to improve our organization to better serve you, our members. To that end, we have committed to develop and implement a strategic plan for the future of the organization with the goal to strengthen and enhance the relevancy of the CDLA. We are also planning to update and enhance our website so it can be a strong resource to our members. We hope that you will continue to be actively engaged in the CDLA, and please share with us your ideas and opinions on how we can better serve the Connecticut civil defense bar. The Defense welcomes contributions and comments from members of the Connecticut Defense Lawyers Association. If you would like to submit an article, case review, verdict report, or news of interest to the defense bar, contact the editorial board at kirby.huget@thehartford.com.

3 The DEFENSE Autumn 2013 Page 3 LETTER FROM THE EXECUTIVE DIRECTOR By Kristen N. Mellitt Running has been part of my life for more than 25 years. I was captain of my cross-country and track teams at Shelton High School, and I ve been a runner ever since. I started participating in community road races with my father in the mid-90s and continue to be drawn to the festive atmosphere, the sense of camaraderie, and the promotion of fitness at these events. I still run about a dozen organized races each year and have begun to bring my own children to run with me. I am not alone in my enthusiasm for running races. According to Running USA, the popularity of running events has exploded in the past couple of decades, with more than 15.5 million people finishing a road race in 2012 as compared with about 4.75 million in The number of marathoners annually has increased almost as dramatically, with nearly half a million finishers in 2012 more than twice the number in My own love for running and the overall growth of the sport led me to think that perhaps the CDLA should consider hosting or sponsoring a 5k race. At the DRI Annual Meeting I attended in Chicago last month, I learned that other state and local defense organizations around the country organize such events successfully. Like other CDLA events, it would provide members the opportunity for socializing and networking, but in a relaxed environment that might be a refreshing change. It would also offer a chance for the CDLA to give back to the community, as road races often benefit worthwhile causes. As a moving example, the inaugural Sandy Hook Run for the Families in Hartford this past March raised more than $400,000 for the Sandy Hook School Support Fund. Maybe a CDLA 5k could contribute to a legal aid organization, fund a scholarship, or donate to a nonprofit like Dress for Success or Suited for Change. Another option would be for the CDLA to sponsor an existing race. If any members are interested in helping to plan such an event, offering ideas for groups to support, or suggesting races with which the CDLA might get involved, please contact me at (203) or ctdefenselawyers@gmail.com. CDLA Hosts Successful Annual Meeting The Connecticut Defense Lawyers Association held its annual meeting on Thursday, June 13, 2013, at the Crowne Plaza in Cromwell, Connecticut. The event began with a seminar exploring ethics for defense lawyers from the tripartite relationship through trial. The seminar focused on real-life scenarios for civil defense lawyers, with topics including the tripartite relationship, conflicts of interest in representing multiple parties, and ethical issues at trial. Panelists Jamie Sullivan, partner at Howard, Kohn, Sprague & FitzGerald and coauthor of Connecticut Legal Ethics and Malpractice; Stuart Johnson, ethics partner at Carmody and Torrance; and Timothy J. Gephart, Vice-President, Claims for Minnesota Lawyers Mutual Insurance Company addressed how to identify and handle ethical dilemmas that civil defense lawyers face daily in practice. The seminar was followed by a cocktail reception and dinner attended by more than 70 guests. The CDLA s business meeting to elect officers and directors took place following dinner. Robert J. Sickinger of Murphy & Karpie was elected president of the organization and Christopher Harrington of Howard, Kohn, Sprague & FitzGerald became a new officer of the board. Our keynote speaker, the Honorable Terence A. Zemetis, spoke about the importance of preserving the jury trial system, as well as a pilot program at the Waterbury Superior Court in which cases are assigned to an individual judge. Finally, the President s Award for Excellence, which recognizes a member of the bar who has provided outstanding service to the bar and demonstrated excellence in practice, was presented to Jack Steigelfest, partner at Howard, Kohn, Sprague & FitzGerald and past president of the CDLA. Minnesota Lawyers Mutual Insurance Company and Brandon Smith Reporting & Video LLC were Platinum sponsors of the event. Gold sponsors included Exponent, Gordon ADR, and Sanders, Gale & Russell. Pullman & Comley and its ADR Group sponsored at the Silver level.

4 Page 4 Autumn 2013 The DEFENSE An Assessment of Wrongful Death Cases by Peter Bowman Wrongful death cases are among the most difficult cases to value, both for attorneys and juries. Verdicts and settlements cover a wide range often attributable to minimal economic losses and the difficulty of assessing damages in accordance with Connecticut General Statutes A review, however, of recent wrongful death verdicts and settlements suggests a trend toward lower case values. The cases below provide a snapshot of the present value of a life in Connecticut. The cases presented exclude defense verdicts, medical malpractice actions, loss of consortium claims, comparative negligence reductions, and punitive damage awards. This review suggests that the decedent s age and the estate s ability to black board large economic losses are major drivers that influence value. These cases represent value in the $900,000 to $4,000,000 range, in sharp contrast to larger reported awards to persons who sustained long-term, disabling injuries. In Estate of Upton v. United Parcel Service, Inc., Superior Court for the Judicial District of New London, Docket No. KNL- CV S (February 12, 2013) (Peck, J.), the plaintiff claimed damages for wrongful death as a result of a motor vehicle accident. The decedent, a 55-year-old male truck driver was traveling on city roads and was killed after his pick-up truck was struck by the defendant s vehicle. The plaintiff claimed negligence and reckless misconduct. The jury found in favor of the plaintiff on both counts, but declined to award punitive damages. The plaintiff was awarded $508, in economic damages and $1,500, in non-economic damages, for a total award of $2,008, In Estate of Bauce v. Safelite Group, Inc., Superior Court for the Judicial District of Waterbury, Docket No. UWY-CV S (December 21, 2012) (Shapiro, J.), the plaintiff claimed damages resulting from a motor vehicle accident. The plaintiff s decedent was an 83-year-old retired female who died from injuries sustained when her vehicle was hit by the defendant s vehicle at a stop-sign controlled intersection. The jury awarded the plaintiff $880,000, of which $130,000 was for economic damages and $750,000 was for non-economic damages. In Estate of Munoz v. State of Connecticut, Superior Court for the Judicial District of New Haven, Docket No. NNH-CV S (July 30, 2012) (Wilson, J.), a 26-year-old laborer was a passenger when killed in a three-vehicle accident. The host vehicle was struck from behind by a tractor-trailer after a State DOT vehicle stopped in the middle lane of Interstate 95 to remove debris from the roadway. Jurors awarded the plaintiff $11, in economic damages and $4,000, for noneconomic damages. In Maldonado v. Fontanez and Onofrio s Fresh Cut, Superior Court for the Judicial District of New Haven (2011), a 29-yearold single mother was a passenger in her boyfriend s commercial truck. The operator was employed by the named defendant and was allegedly traveling too fast for conditions at the time of the accident. Federal regulations and the weight of the truck also allegedly played a role in the incident. Prior to trial, the plaintiff settled with the defendant motorist and his employer for $3,200,000. In the highly publicized case of Servin v. Anderson, Superior Court for the Judicial District of New Haven (2012), a Milford police officer was traveling 94 miles per hour when his vehicle struck the decedent s vehicle. The police officer was charged and later convicted of misconduct with a motor vehicle. The estate claimed that the police officer was not responding to an emergency and showed a persistent pattern of excessive driving. The estate alleged further that the defendant s negligence resulted in the teen s death. The case settled for $2,500,000 prior to the criminal conviction. In Veenhuis v. Repko, Probate Court Settlement Approval, (March 10, 2010) (Voelkler, J.), a 3-year-old child drowned at home under the supervision of a babysitter. The wrongful death claim settled for $1.5 million. This settlement falls within the low range of reported cases, probably due to the decedent s age, relationship of the parties, and the fact the incident occurred at the plaintiff s home. In Estate of Roselli v. Maximum Tree Service, LLC, Superior Court for the Judicial District of Hartford (Robaina, J.) (2012), the plaintiff brought suit after the decedent was struck and killed by a tree being removed by the defendant. The decedent, a 73-yearold retired school teacher, was walking home when he was hit by the falling tree while walking near the work site. The estate claimed the decedent initially survived the incident, but died in the hospital. The parties settled for $950,000. See Wrongful Death on Page 5

5 The DEFENSE Autumn 2013 Page 5 Workers Compensation Continued from Page 1 European countries followed suit, including England in 1897 (although Connecticut would still recognize the English common law scheme after that date). After the turn of the century, a handful of states passed workers compensation systems in this country. These statutes, however, were all struck down as unconstitutional for violating employers due process rights. Most notably, New York s workers compensation system was struck down on March 24, Tragically, the day after the New York workers compensation system was abolished, 146 sweatshop workers perished in the infamous Triangle Shirtwaist Factory fire in New York City. On March 25, 1911, a small fire within the workshop spread to accumulated garment scraps, quickly engulfing several high stories of the building in flames. Heartbreakingly, the company had locked many exit doors to the facility with the hope of limiting employee breaks and theft. Hundreds of workers were trapped in the burning building with no escape, other than jumping approximately 100 feet to the concrete below. 146 victims died due to the fire, smoke inhalation, and either falling or jumping from the building. Without a workers compensation system in place, the decedents estates were left to sue Triangle in civil court. The plaintiffs eventually prevailed, but collected only $75.00 per decedent. The tragic loss of life proved to be a rallying cry for many causes, including workers compensation. Wrongful Death Continued from Page 4 Although larger verdicts and settlements exist, these cases suggest the value of wrongful death cases in Connecticut fall generally in the $900,000 to $4,000,000 range. While each case presents unique factual issues and legal defenses, the above should provide the defense practitioner with support for evaluating cases in this range. Peter Bowman is an associate at Boyle, Shaughnessy, & Campo, P.C. in Hartford, Connecticut Connecticut Enacts the WCA Considering societal change and increased political pressure, Connecticut began the legislative process to enact the Workers Compensation Act in The standing committees on judiciary and labor engaged Willard C. Fisher, an economics professor at Wesleyan and former Middletown mayor, to assist in the drafting of the act. Fisher testified in favor of extending these protections to all Connecticut employees, stating that the law ought to be as wide as possible in its scope; there ought to be no employment left out that can practicably be included. Lopa v. Brinker Int l, Inc., 296 Conn. 426, 432, 994 A.2d 1265, 1269 (2010). Considering the existing common law obstacles and practical challenges to bringing claims, the purpose of our Act... is to give to the employee and to his dependents compensation for the loss of wages accruing from the employee s injury. Bassett v. Stratford Lumber Co., 105 Conn. 297, 303, 135 A. 574 (1926). The WCA reflects a balance between employee and employer interests. On the claimant s side, the WCA had the following objectives: providing no-fault coverage for work-related injuries, preventing income interruption during periods of disability, providing necessary medical care without cost to the injured party, and encouraging workplace safety. In return, the statutory system compromise[s] an employee s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). The WCA was enacted on October 1, 1913 without a dissenting vote, and took effect on January 1, Today, more than 100 years after the WCA was enacted, Connecticut workers continue to enjoy the same necessary protections afforded through the original act, including no-fault benefits, income protection, medical treatment, and fostering safety in the workplace. Eamonn S. Wisneski is an attorney at Dzialo, Pickett & Allen, P.C. in Old Saybrook, Connecticut.

6 Page 6 Autumn 2013 The DEFENSE DECISIONS OF INTEREST Defense Verdict in Personal Injury Claim Arising Out of a Motor Vehicle Accident On July 10, 2013, Attorney Joseph R. Grippe of Ouellette, Deganis, and Gallagher, LLC obtained a defense verdict in the matter of Christopher Robertson v. Sarah Motta, et al in the New Britain Superior Court. This action arose out of a motor vehicle accident that took place on Route 10 in Cheshire. The plaintiff, Christopher Robertson, was represented by Attorney David Cooney at RisCassi & Davis, P.C. He alleged that the defendant, Sarah Motta, was negligent in pulling out of a parking lot and striking a vehicle being operated by Justin Murdy. The plaintiff further alleged that he was forced to swerve to avoid the colliding vehicles, causing him to lose control and hit a snow bank. The plaintiff claimed injuries to his neck, back, and shoulder. Ryan Ryan Deluca LLP Wins Supreme Court Reversal Reinstating Defense Verdict in Malpractice Case and Announcing New Rule Regarding Jurors Exposure to Media In a case argued by Ryan Ryan Deluca LLP partner, Rob Laney, the Connecticut Supreme Court recently reversed an Appellate Court ruling and reinstated a defense verdict obtained by Ryan Ryan Deluca LLP on behalf of a psychiatric hospital in a case arising out of a suicide by a patient. As part of its decision, the Supreme Court issued a new rule governing jury selection in all trial courts in the state of Connecticut. In 2007, the jury returned a verdict finding that the hospital did not deviate from the requisite standard of care. After completion of jury selection and just prior to the start of evidence, the New York Times ran a lengthy article about the decedent s suicide and the resulting lawsuit. Plaintiff s counsel asked the court to poll the jury to determine whether any of them had read the article prior to the start of the evidence. The trial court denied this request, in part because the jurors had been advised by the jury clerk during the jury selection process to avoid any media accounts about the case. The court also repeatedly instructed the jury throughout the trial that it could only decide the case based upon evidence presented during the trial. The plaintiff appealed and the Appellate Court reversed, finding that the trial court abused its discretion by not polling the jury in light of the inflammatory nature of the article and the potential prejudice and undue influence that exposure [to it] would have on the jury. The Supreme Court granted the firm s petition for review of that ruling. In a unanimous opinion released on August 13, 2013, the Supreme Court reversed the ruling of the Appellate Court and ordered that judgment be entered in the hospital s favor in accordance with the jury s verdict. The Supreme Court held that the jury clerk s instructions during jury selection to avoid extraneous sources of information were sufficient and that, in the absence of any evidence that any jurors read the article, the trial court was within its discretion to deny the request to poll the jury. However, the court also exercised its inherent supervisory authority over the state s trial courts to promulgate a new rule. This rule requires that the presiding judge instruct all jurors, once selected, either orally or in writing, that (1) it is their sworn duty to decide the facts of the case based only upon evidence presented at trial, (2) that this duty requires the juror to avoid all publicity about the case and all communications with anyone else about the case or the issues involved and (3) if, despite the juror s best efforts, he or she is exposed to such publicity or communications, the juror will immediately inform the court about such exposure in writing so that the court can follow up, as necessary, to ensure that all parties right to a fair trial is protected. New Members The Connecticut Defense Lawyers Association welcomes the following new members. Richard F. Connors Richard F. Connors, P.C. Francis J. Drumm, III Mulvey, Oliver, Gould & Crotta Michael R. Keller Morrison Mahoney LLP Anyone interested in serving on any of the CDLA committees should contact Executive Director Kristen N. Mellitt at (203) or ctdefenselawyers@gmail.com.

7 The DEFENSE Autumn 2013 Page 7 CONNECTICUT DEFENSE LAWYERS ASSOCIATION Post Office Box 2114 Cheshire, CT Telephone and fax: (203) ctdefenselawyers@gmail.com Website: Membership Application July 1, 2013 June 30, 2014 Note: This membership application affords the privileges of membership for applicants from the date of submission and acceptance through June 30, New membership applications are subject to approval by the Board of Directors of the Connecticut Defense Lawyers Association. Applicant Name: Firm: Address: Telephone: Fax: (req d): Year Admitted to Connecticut Bar DRI member? Yes No Membership Fee: $ Amount Enclosed: First year defense attorneys qualify for a free one year membership in the CDLA, and first time members of the CDLA qualify for a free one year membership to DRI. The submission of this application constitutes a representation by the applicant that he or she devotes a substantial amount of his or her time to the representation of defendants in civil litigation. Thank you for applying for membership. We value your support and look forward to your active participation in CDLA. In order to better meet your needs we would like to know the focus of your practice. Please indicate the top 3 areas (i.e. 1, 2, 3). Auto Liability Civil Rights Commercial Litigation Construction Law Directors & Officers Drug/Medical Device Employment Law Environmental Law Fidelity Insured Governmental Liability Insurance Coverage Intellectual Property Medical Malpractice Premises Liability Products Liability Professional Liability Sexual Abuse/Harassment SIU/Fraud Toxic Tort Trucking Law Uninsured Motorist Workers Compensation Other Membership is only the start. For the CDLA to be an asset to its members, active participation is needed. If you would be willing to serve on a CDLA Committee, please indicate below which committees you would be willing to join, in order of preference. Legislative/Rules Amicus Curiae CLE Membership The Defense (newsletter) Sponsorship Technology Speakers Would you be willing to serve as a mentor to a younger attorney? Mentoring a younger attorney simply means you will agree to speak with younger attorneys, on an informal basis, to answer questions as the need arises. Yes No

8 Page 8 Autumn 2013 The DEFENSE Howard, Kohn, Sprague & FitzGerald, LLP Welcomes Claudia Baio Claudia A. Baio will be joining the firm of Howard, Kohn, Sprague & FitzGerald, LLP on January 1, Attorney Baio will continue to practice civil litigation focusing on the defense of insured individuals and entities, workers compensation defense, insurance coverage and subrogation issues, and the needs of private sector clients. Attorney Baio graduated from Trinity College in Hartford in 1986 with degrees in English and Educational Studies. She graduated from The University of Connecticut School of Law in Claudia has been admitted to practice in Connecticut since 1989, has maintained her own law firm since 2000, and now joins the oldest continually operating law firm in the country. Attorney Baio has been active in a number of professional and community organizations. She is a past president of the Hartford County Bar Association, the Connecticut Defense Lawyers Association, and the Rocky Hill Chamber of Commerce. She is also the former State Representative to the Defense Research Institute and a current member of the DRI Insurance Committee. Attorney Baio is an invited member of the Federation of Defense and Corporate Counsel, The Association of Defense and Trial Counsel, The American Counsel Association, and the Claims Litigation Management Alliance. She currently serves as a Hearing Officer on Land Use and Blight Citation Appeals for the Town of Rocky Hill, and serves as an arbitrator and mediator both through the Judicial Department court annexed program and privately. She also currently chairs the State Contracting Standards Review Board and serves as a Commissioner to the State Governmental Accountability Commission. Attorney Baio will bring a wealth of knowledge with her to Howard, Kohn, Sprague & FitzGerald. Claudia resides in the Town of Rocky Hill with her family and remains active in town politics. TheDEFENSE Connecticut Defense Lawyers Association Kristen N. Mellitt, Executive Director P.O. Box 2114 Cheshire, CT 06410