Gonzalez v. O. & G. Industries, Inc. ( 2016 )

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ELVIRA R. GONZALEZ ET AL. v. O AND G
INDUSTRIES, INC., ET AL.
(SC 19377)
Palmer, Zarella, Eveleigh, Espinosa, Robinson, Vertefeuille and Lavine, Js.
Argued January 20—officially released August 2, 2016
James J. Healy, with whom were Joel T. Faxon and,
on the brief, Eric P. Smith and Jason K. Gamsby, for
the appellants (plaintiff James L. Thompson II et al.).
Michael S. Lynch, with whom were Charles W.
Fleischmann and, on the brief, Thomas M. McKeon, and
Kimberly A. Knox, for the appellee (named defendant).
Opinion
ROBINSON, J. The sole issue in this appeal is whether
a general contractor that implemented a contractor con-
trolled insurance program (CCIP) to centralize the pur-
chasing of workers’ compensation insurance for a major
project has ‘‘paid compensation benefits’’ to the employ-
ees of its subcontractors, thus entitling it to ‘‘principal
employer’’ immunity under General Statutes § 31-2911
from further claims by those employees. The plaintiffs,
James L. Thompson II, Carol M. Thompson, and James
McVay,2 seek to recover damages resulting from the
alleged negligence of the named defendant, O & G
Industries, Inc.3 The plaintiffs appeal4 from the trial
court’s grant of the defendant’s motion for summary
judgment with respect to their tort claims. On appeal,
the plaintiffs claim that the trial court improperly con-
cluded that the defendant had ‘‘paid compensation ben-
efits’’ on the basis of an incorrect interpretation of that
term as used in § 31-291. We agree with the plaintiffs’
claim that the trial court improperly interpreted the
term ‘‘paid compensation benefits’’ in § 31-291, but fur-
ther conclude that, even under the proper construction
of the statute, no genuine issue of material fact exists
as to whether the defendant paid compensation benefits
to Thompson and McVay. Accordingly, we affirm the
judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. In 2009, the defendant served
as the general contractor for the construction of a gas
fired power plant in Middletown. The defendant hired
a subcontractor, United Anco Services, Inc. (United
Anco), to assemble scaffolding at the site. Thompson
was an employee of United Anco. The defendant hired
a second subcontractor, Ducci Electrical Contractors,
Inc. (Ducci Electrical), to perform inspection and test-
ing of instrumentation. Ducci Electrical, in turn, hired
a third subcontractor, Instrument Sciences and Tech-
nologies, Inc. (Instrument Sciences), to perform the
instrumentation and control work. McVay was an
employee of Instrument Sciences.
Both United Anco and Ducci Electrical agreed to
the standard subcontract used by the defendant. The
defendant’s standard subcontract required all bidders
to include, as a line item in their bids, their insurance
costs to complete their work. The subcontractors would
calculate these costs using their individual insurance
rates and anticipated payroll, plus allowances for any
overhead and profit. The standard subcontract stated,
however, that the defendant ‘‘may’’ elect to implement
a CCIP to ‘‘centralize the purchasing of insurance’’ for
the project. This ‘‘consolidated purchasing of insur-
ance’’ would include, inter alia, workers’ compensation
insurance for the defendant and all tiers of subcontrac-
tors. If the defendant opted to implement a CCIP, partic-
ipation in the program would be ‘‘mandatory,’’ and, after
enrolling in the program, each subcontractor would
be relieved of its contractual duty to provide workers’
compensation insurance. The defendant would then use
a change order process to reduce the price of each
subcontract by the amount identified for the subcon-
tractor’s insurance costs.
The defendant subsequently implemented a CCIP,
which provided workers’ compensation coverage for
itself and all enrolled subcontractors through policies
issued by the Old Republic General Insurance Corpora-
tion (Old Republic).5 Both United Anco and Instrument
Sciences enrolled in the program, and each received
individual insurance policies in their names. As the
‘‘[s]ponsor’’ of the program, the defendant was solely
responsible for paying the premiums for its own cover-
age and that of all enrolled subcontractors. The defen-
dant subsequently paid a premium in the amount of
$1,150,465 for workers’ compensation coverage pro-
vided under the CCIP.
Thereafter, the defendant issued change orders
deducting the insurance costs specified in the bids from
United Anco and Ducci Electrical from their respective
subcontracts.6 Ducci Electrical, in turn, issued a corres-
ponding change order to its subcontract with Instru-
ment Sciences, reducing it by the amount equal to
Instrument Sciences’ insurance costs.
Over approximately the next eighteen months, the
payrolls of United Anco, Ducci Electrical, and Instru-
ment Sciences increased due to certain demands neces-
sary to complete the power plant project. According to
the CCIP Insurance Manual (manual),7 if a subcontrac-
tor’s payroll increased, the subcontractor would issue
a change order to the subcontract accounting for the
additional labor, including the cost the subcontractor
would have incurred to provide its own insurance for
that labor, had a CCIP not been in place.8 This amount
would represent the amount that would have been
included in the subcontractor’s original bid. The defen-
dant would then issue its own change order to the
subcontract to reduce it by the subcontractor’s
increased insurance costs, because it now provided
insurance to all of the subcontractor’s employees
through the CCIP. During that time period, the defen-
dant issued several additional change orders to its sub-
contract with United Anco to account for its increased
payroll and insurance costs.9
On February 7, 2010, an explosion occurred at the
power plant construction site, injuring Thompson and
McVay.10 Under the terms of the CCIP, the defendant
was required to pay a $250,000 deductible in the event
that workers’ compensation benefits were to be paid.
The defendant paid this deductible to Old Republic,
along with a claim handling fee in the amount of $17,500
to administer workers’ compensation benefits. Both of
these payments were made to Old Republic by checks
drawn on the defendant’s account. Thompson and
McVay subsequently applied for and received workers’
compensation benefits under the CCIP, including medi-
cal expenses and lost wages.11
The plaintiffs brought the present action against the
defendant under General Statutes § 31-293 (a),12
asserting, inter alia, negligence and strict liability claims
in connection with injuries caused by the explosion.
The defendant moved for summary judgment on these
claims, arguing that it was immune from civil actions
under § 31-291 because it was a ‘‘principal employer’’
that had paid workers’ compensation benefits to
Thompson and McVay. The plaintiffs did not challenge
the defendant’s status as a principal employer, but
asserted that a genuine issue of material fact existed
as to whether the defendant had ‘‘paid’’ workers’ com-
pensation benefits. In particular, the plaintiffs argued
that, although the defendant sponsored a CCIP and paid
the premium under the policies, it was the subcontrac-
tors that had actually paid the benefits, because the
defendant effectively shifted the cost of the premium
to its subcontractors by issuing change orders in the
amount of each subcontractor’s insurance costs. The
plaintiffs further argued that § 31-291 requires a princi-
pal employer to demonstrate that it paid for ‘‘all or the
entirety’’ of the workers’ compensation benefits to an
injured employee, and that the defendant had not
done so.
The trial court granted the defendant’s motion for
summary judgment. In its memorandum of decision,
the trial court first concluded that the plain and unam-
biguous meaning of the word ‘‘paid’’ as used in § 31-
291 is ‘‘simply to transfer money.’’ As such, because it
was undisputed that the defendant had paid the pre-
mium, deductible, and other costs for the CCIP, the
trial court concluded that no genuine issue of material
fact existed as to whether the defendant ‘‘paid’’ workers’
compensation benefits to Thompson and McVay. In
essence, the trial court determined that the factual dis-
pute about whether the subcontractors reimbursed the
defendant for the costs of the CCIP through the change
order process was not material to whether the defen-
dant had paid the benefits. The trial court further con-
cluded that § 31-291 does not require a principal
employer to prove that it paid all of the workers’ com-
pensation benefits to an injured employee in order to
obtain immunity. Accordingly, the trial court granted
summary judgment in favor of the defendant on the
plaintiffs’ claims. This appeal followed.
On appeal, the plaintiffs claim that the trial court
improperly interpreted the term ‘‘paid compensation
benefits’’ in § 31-291, and that, under the proper con-
struction, a genuine issue of material fact exists as to
whether the defendant paid such benefits. The plaintiffs
contend that the trial court adopted an unduly narrow
definition of the word ‘‘paid’’ as ‘‘simply to transfer
money,’’ and that the plain and unambiguous meaning
of ‘‘paid’’ is to bear a cost. Alternatively, the plaintiffs
argue that the word ‘‘paid’’ is ambiguous, and that the
legislative history and purpose of § 31-291 supports
their definition. The plaintiffs also reiterate their claim
that the defendant was required to prove that it paid
all of their benefits to obtain immunity under § 31-291.
According to the plaintiffs, this interpretation of § 31-
291 yields a genuine issue of material fact as to whether
the defendant paid, namely, bore the entire cost of, the
workers’ compensation benefits provided to Thompson
and McVay.
In response, the defendant contends that the trial
court properly interpreted the term ‘‘paid compensation
benefits’’ in § 31-291, but posits that, under either inter-
pretation, it paid such benefits. The defendant argues
that the trial court correctly determined that the plain
and unambiguous meaning of ‘‘paid’’ is ‘‘simply to trans-
fer money.’’ Even under the plaintiffs’ definition, how-
ever, the defendant argues that it ‘‘paid’’ workers’
compensation benefits to Thompson and McVay
because it bore the costs of the CCIP and did not pass
those costs on to its subcontractors through the change
order process. The defendant maintains that it simply
eliminated the subcontractors’ costs to provide their
own insurance for the project, which they no longer
incurred after enrolling in the CCIP. We conclude that,
although § 31-291 requires a principal employer to bear
the costs of all of the injured employees’ benefits to be
entitled to immunity, there nevertheless is no genuine
issue of material fact as to whether the defendant bore
all of those costs in this case.
‘‘At the outset, we set forth the applicable standard
of review. [T]he standard of review of a trial court’s
decision to grant a motion for summary judgment is
well established. Practice Book [§ 17-49] provides that
summary 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. . . . Our review of the trial court’s
decision to grant [a] motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Doe v.
Norwich Roman Catholic Diocesan Corp., 279 Conn.
207, 211, 901 A.2d 673 (2006). ‘‘The issue before this
court involves a question of statutory interpretation that
also requires our plenary review.’’ (Internal quotation
marks omitted.) Id., 212.
To determine whether the defendant ‘‘paid compen-
sation benefits’’ to the plaintiffs, we must first discern
the proper meaning of that term under § 31-291. Specifi-
cally, we first consider whether the word ‘‘paid’’ is prop-
erly defined, as urged by the plaintiffs, as to ‘‘bear a
cost’’ or, as argued by the defendant, ‘‘simply to transfer
money.’’ We next determine whether the term ‘‘paid
compensation benefits’’ requires a principal employer
to prove that it paid all of the injured employees’ work-
ers’ compensation benefits to obtain statutory immunity
under § 31-291.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . . The
test to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Citation omitted; internal quota-
tion marks omitted.) Doe v. Norwich Roman Catholic
Diocesan Corp., supra, 279 Conn. 212.
In accordance with § 1-2z, we begin our analysis with
the text of the statute. Section 31-291 provides in rele-
vant part: ‘‘When any principal employer procures any
work to be done wholly or in part for him by a contrac-
tor, or through him by a subcontractor . . . such prin-
cipal employer shall be liable to pay all compensation
under this chapter to the same extent as if the work
were done without the intervention of such contractor
or subcontractor. The provisions of this section shall
not extend immunity to any principal employer from a
civil action brought by an injured employee . . . under
the provisions of section 31-293 to recover damages
resulting from personal injury . . . unless such princi-
pal employer has paid compensation benefits . . . to
such injured employee . . . .’’ (Emphasis added.)
The first sentence of § 31-291 embodies the ‘‘principal
employer doctrine,’’ under which an employer that hires
a contractor or subcontractor, and meets the statutory
definition of a ‘‘principal employer,’’13 is liable to pay
workers’ compensation benefits to the injured employ-
ees of those contractors or subcontractors. Pelletier
v. Sordoni/Skanska Construction Co., 264 Conn. 509,
518–19, 825 A.2d 72 (2003). Furthermore, if the principal
employer actually pays those benefits, according to the
second sentence of § 31-291, it enjoys immunity from
further claims by the injured employees brought under
§ 31-293. The word ‘‘paid’’ is, however, not defined in
§ 31-291. Section 31-291 does specify, however, that the
principal employer must have paid the benefits to the
injured employee to obtain immunity, rather than
merely stating in the abstract that the employee must
be paid benefits, which appears to support the plaintiffs’
definition of the word ‘‘paid’’ as a cost borne by the
principal employer. In isolation, however, the plain lan-
guage of § 31-291 provides no further insight into the
meaning of this word.
We next examine the text of § 31-291 within the
greater framework of the Workers’ Compensation Act
(act), General Statutes § 31-275 et seq. See Doe v. Nor-
wich Roman Catholic Diocesan Corp., supra, 279 Conn.
212. The purpose of the act is ‘‘to provide compensation
for injuries arising out of and in the course of employ-
ment, regardless of fault. . . . Under the statute, the
employee surrenders his right to bring a common law
action against the employer, thereby limiting the
employer’s liability to the statutory amount. . . . In
return, the employee is compensated for his or her
losses without having to prove liability.’’ (Internal quo-
tation marks omitted.) Rettig v. Woodbridge, 304 Conn.
462, 473, 41 A.3d 267 (2012); see also General Statutes
§ 31-284 (a).14 The words ‘‘paid’’ and ‘‘pay’’ appear in
relation to compensation in several sections of the act,
but the act does not define those words.15 See, e.g.,
General Statutes §§ 31-275 (I) (A) (iii), 31-293 (b) and
31-306 (b) (‘‘paid’’); General Statutes §§ 31-294c (b), 31-
352 and 31-355 (b) (‘‘pay’’).
In accordance with General Statutes § 1-1 (a), we,
therefore, look to the common usage of the word ‘‘paid’’
to discern the definition intended by the legislature in
§ 31-291. See, e.g., Potvin v. Lincoln Service & Equip-
ment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010). ‘‘To
ascertain that usage, we look to the dictionary definition
of the term.’’ (Internal quotation marks omitted.) Id.Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003) defines ‘‘pay’’ as ‘‘to make due return to for ser-
vices rendered or property delivered,’’ ‘‘to engage for
money,’’ or ‘‘to make a disposal or transfer of . . .
money . . . .’’ Likewise, the American Heritage College
Dictionary (4th Ed. 2007) defines ‘‘pay’’ as ‘‘to give . . .
money . . . in exchange for goods or services’’ or ‘‘to
bear a . . . cost . . . in recompense.’’16
We conclude that the term ‘‘paid compensation bene-
fits,’’ as used in § 31-291, is ambiguous. Given the fact
that the dictionary definitions of ‘‘pay’’ include both ‘‘to
make a disposal or transfer of . . . money’’; Merriam-
Webster’s Collegiate Dictionary, supra; and ‘‘to bear a
. . . cost’’; American Heritage College Dictionary,
supra; the definitions asserted by the plaintiffs and the
defendant are reasonable.17 Specifically, in the context
of § 31-291, the legislature may reasonably have
intended that the principal employer advance workers’
compensation benefits, allowing the principal employer
to be reimbursed later by subcontractors or other
involved parties. The legislature could also reasonably
have intended, however, that the principal employer
shoulder the financial burden of the benefits in
exchange for immunity from further claims by the
injured employees. When § 31-291 is read in the context
of the act, the word ‘‘paid’’ is therefore susceptible to
more than one reasonable interpretation. See Doe v.
Norwich Roman Catholic Diocesan Corp., supra, 279
Conn. 212; see also, e.g., Chase National Bank of New
York v. Schleussner, 117 Conn. 370, 167 A. 808 (1933)
(‘‘pay’’ primarily refers to ‘‘satisfaction made in money,’’
but may also mean ‘‘to transfer’’).18
We therefore look to the legislative history of § 31-
291 and the circumstances surrounding its enactment
for further guidance. See, e.g., Doe v. Norwich Roman
Catholic Diocesan Corp., supra, 279 Conn. 212. More-
over, in interpreting the language of § 31-291, ‘‘we do
not write on a clean slate, but are bound by our previous
judicial interpretations of the language and the purpose
of the statute.’’ Kasica v. Columbia, 309 Conn. 85, 93–
94, 70 A.3d 1 (2013). We have previously stated that the
purpose of the principal employer provision in § 31-291
is ‘‘to afford full protection to work[ers], by preventing
the possibility of defeating the [act] by hiring irresponsi-
ble contractors or subcontractors to carry on a part of
the [principal] employer’s work.’’ (Internal quotation
marks omitted.) Pelletier v. Sordoni/Skanska Construc-
tion Co., supra, 264 Conn. 520.
The principal employer provision has been part of
the act since its enactment in 1913. Id., 519. Prior to
1988, however, § 31-291 did not require the contractor
to actually pay workers’ compensation benefits to the
injured employees in order to obtain immunity. Id., 521–
22. So long as the employer was a principal employer—
and, thus, was liable to pay the benefits—the employer
enjoyed immunity from civil actions regardless of
whether it actually paid those benefits. Id. This liability
for benefits was ‘‘wholly theoretical,’’ however. 31 H.R.
Proc., Pt. 11, 1988 Sess., p. 3717, remarks of Representa-
tive Adamo. ‘‘Because of the certificates of insurance
required of the subcontractors and . . . the benefits
provided by the second injury fund19 . . . the principal
employer was rarely called upon actually to pay th[e]
benefits.’’ (Footnote added.) Pelletier v. Sordoni/Skan-
ska Construction Co., supra, 264 Conn. 522. Principal
employers therefore enjoyed an immunity from civil
actions ‘‘for which they exchanged very little, if any-
thing.’’ Id.In 1988, in recognition of this ‘‘inequitable situation’’;
31 S. Proc., Pt. 8, 1988 Sess., p. 2703, remarks of Senator
Spellman; the legislature amended § 31-291 to require
principal employers to actually pay workers’ compensa-
tion benefits in order to obtain the statutory immunity
from civil actions. Pelletier v. Sordoni/Skanska Con-
struction Co., supra, 264 Conn. 522–26. Legislators
acknowledged that under the then current law, ‘‘the
principal employer received an immunity for which [it]
did not provide any benefit . . . .’’ 31 S. Proc., supra,
p. 2704, remarks of Senator Spellman. As one represen-
tative put it, ‘‘[t]he problem . . . [was] that the princi-
pal employer [could receive] immunity from [an action]
by an injured worker, even when that principal
employer pa[id] that worker nothing at all.’’ 31 H.R.
Proc., supra, p. 3716, remarks of Representative Adamo.
Likewise, one senator noted that ‘‘the situations in
which [a] principal employer would ever be paying
workers’ compensation benefits became few and far
between. Yet, they continued to enjoy the immunity.’’
31 S. Proc., supra, p. 2704, remarks of Senator Spellman.
A legislators characterized this immunity as ‘‘false’’ and
‘‘foolish’’; 31 H.R. Proc., supra, pp. 3741–46, remarks of
Representative Adamo; and recognized that it created a
‘‘grossly unfair’’ and ‘‘particularly outrageous’’ situation.
Id., pp. 3716–17, remarks of Representative Adamo. By
adding the second sentence to § 31-291, the legislature
sought to prevent principal employers from ‘‘get[ting]
a free ride’’; id., p. 3743, remarks of Representative
Eugene Migliaro; and ‘‘hiding behind an immunity and
not paying a single dime.’’ Id., p. 3743, remarks of Repre-
sentative Adamo. Thus, ‘‘[t]he purpose and effect of
this amendment was to limit the implied common-law
immunity of the principal employer to the situation in
which it had in fact paid the workers’ compensation
benefits that presumably were the basis of its immunity.
Implicit in this amendment, moreover, was the notion
that, except in the isolated cases of its application,
there would be no such immunity.’’ (Emphasis added.)
Pelletier v. Sordoni/Skanska Construction Co., supra,
525.
On the basis of this legislative history, we conclude
that the legislature intended the word ‘‘paid’’ in § 31-
291 to mean bear a cost, rather than simply transfer
money. Legislators who supported adding this language
to § 31-291 continually expressed concern with the lack
of an even exchange for the principal employer’s immu-
nity from civil actions. It follows that, when the legisla-
ture stated that the principal employer must have ‘‘paid
compensation benefits’’ to obtain immunity, it meant
that the principal employer must shoulder the financial
burden of those benefits, rather than pass that responsi-
bility on to its subcontractors or the second injury fund.
Otherwise, the ‘‘false’’ and ‘‘foolish’’ immunity that
prompted the addition of this requirement to § 31-291
could continue. 31 H.R. Proc., supra, pp. 3741–46,
remarks of Representative Adamo. Indeed, under the
defendant’s definition of the word ‘‘paid,’’ principal
employers could purchase workers’ compensation
insurance, seek direct reimbursement from their con-
tractors or subcontractors, and incur no cost at all in
‘‘exchange’’ for their immunity from claims by the
injured employees of those contractors or subcontrac-
tors. Pelletier v. Sordoni/Skanska Construction Co.,
supra, 264 Conn. 522. This situation would, in reality,
be no different from the ‘‘unbelievably unfair’’ situation
that led to the 1988 amendment of § 31-291. 31 H.R.
Proc., supra, p. 3717, remarks of Representative Adamo.
Indeed, it would render that amendment superfluous,
and we presume that the legislature does not intend to
enact meaningless legislation. See, e.g., In re Bachand,
306 Conn. 37, 54, 49 A.3d 166 (2012).
This is not to say, however, that a principal employer
cannot account for the cost of providing workers’ com-
pensation insurance through a CCIP for its contractors
and subcontractors in its own bids for a project. We
recognize that, ultimately, the owner of the project
‘‘bears the cost’’ for all of the workers’ compensation
insurance for the project. Indeed, a principal employer
must pass these costs on to the owner in order to make
a profit on the project.20 We simply hold that a principal
employer cannot pass these costs on to its contractors
or subcontractors, or the second injury fund, and
receive the statutory immunity under to § 31-291.
In the same vein, the legislative history of § 31-291
leads us to conclude further that the principal employer
must pay all, not merely some, of the injured employees’
workers’ compensation benefits in order to receive the
statutory immunity. Thus, we disagree with the trial
court’s interpretation to the contrary, which was based
on the legislature’s use of the word ‘‘all’’ in the first
sentence of § 31-291, concerning the employer’s liability
to pay workers’ compensation benefits, and not the
second sentence, concerning the employer’s immunity
for paying such benefits. Although the absence of a
word in a portion of a statute is surely significant in
interpreting the statute; see Viera v. Cohen, 283 Conn.
412, 431, 927 A.2d 843 (2007) (‘‘[t]ypically, the omission
of a word otherwise used in the statutes suggests that
the legislature intended a different meaning for the
alternat[ive] term’’); we cannot interpret § 31-291 in a
manner that allows principal employers to pay only
some benefits to receive immunity, because doing so
would create a loophole in the statute that subverts the
expressed intent of the legislature.21 ‘‘The principles of
statutory construction . . . require us to construe a
statute in a manner that will not thwart its intended
purpose or lead to absurd results.’’ (Internal quotation
marks omitted.) Coppola v. Coppola, 243 Conn. 657,
665, 707 A.2d 281 (1998). Under the trial court’s interpre-
tation of § 31-291, as advanced by the defendant, princi-
pal employers could pay a mere pittance of the injured
employees’ workers’ compensation benefits and still
obtain complete immunity from claims by those
employees. Principal employers could also seek direct
reimbursement from their contractors or subcontrac-
tors for nearly all of the cost of the benefits.22 Like the
‘‘outrageous’’ situation that existed prior to 1988; 31
H.R. Proc., supra, p. 3717, remarks of Representative
Adamo; principal employers would therefore exchange
‘‘very little’’ for their immunity. Pelletier v. Sordoni/
Skanska Construction Co., supra, 264 Conn. 522. Such
a construction of § 31-291 would also undermine the
legislature’s intent to limit the instances of principal
employer immunity to ‘‘isolated’’ cases. Id., 525. Accord-
ingly, we conclude that the term ‘‘paid compensation
benefits’’ in § 31-291 requires a principal employer to
demonstrate that it bore the cost of all of the workers’
compensation benefits to an injured employee in order
to obtain statutory immunity from civil actions.
Applying this construction of § 31-291 to the present
case, we next determine whether there is a genuine
issue of material fact with respect to whether the defen-
dant paid, i.e. bore the cost of, all of the workers’ com-
pensation benefits to Thompson and McVay, thus
entitling it to immunity under § 31-291. As noted pre-
viously, it is undisputed that the defendant paid the
$1,150,465 premium for the workers’ compensation cov-
erage provided to United Anco, Instrument Sciences,
and dozens of other subcontractors under the CCIP. It
is also undisputed that the defendant paid a $250,000
deductible under the CCIP and a $17,500 claim handling
fee to administer the benefits provided to Thompson
and McVay. The plaintiffs argue, however, that the
defendant recouped those costs from its subcontractors
through the change order process. The plaintiffs claim
that the defendant used change orders to carve its costs
for the CCIP out of the subcontractors’ contract prices,
rather than adjusting the subcontractors’ costs to reflect
the fact that the CCIP relieved them of the responsibility
to provide their own insurance. Thus, in the plaintiffs’
view, the subcontractors actually ‘‘paid’’ workers’ com-
pensation benefits to Thompson and McVay, with the
defendant serving as a mere intermediary. The defen-
dant, however, responds that the change orders simply
removed the costs that the subcontractors would have
incurred to procure their own insurance, had a CCIP not
been in place, from their subcontracts. The defendant
contends that this price adjustment simply prevented it
from ‘‘double-paying’’ for the subcontractors’ insurance
coverage. We agree with the defendant, and conclude
that there is no genuine issue of material fact as to
whether the defendant paid for all of the benefits pro-
vided to Thompson and McVay through the CCIP.
First, the defendant’s standard subcontract and the
manual demonstrate that the change orders eliminated
the subcontractors’ costs to procure their own insur-
ance, rather than required the subcontractors to bear
the costs of the CCIP. Both documents required the
subcontractors to include a statement of their insurance
costs in their bids. According to the manual, these costs
represented the subcontractors’ ‘‘normal cost[s] for the
insurance coverages . . . provided under the CCIP’’
as if ‘‘[the] CCIP insurance coverage was not provided
. . . .’’ (Emphasis added.) Both documents also explain
that if the defendant opted to implement a CCIP, those
costs would be subtracted from each subcontract
through appropriate change orders. Furthermore, in the
event that the subcontractor’s payroll increased, the
subcontractor would issue a change order to the sub-
contract specifying its increased payroll, as well as its
increased insurance costs to complete that work, had
a CCIP not been in place. The manual specifically
required the subcontractors to ‘‘price [these] [c]hange
[o]rders to include their [i]nsurance [c]ost[s].’’ (Empha-
sis added.) Thereafter, according to the subcontract
and manual, the defendant would issue its own changes
orders to subtract those additional costs from the sub-
contract. See footnote 8 of this opinion. At the conclu-
sion of the performance of the contract, an audit would
be performed and the ‘‘insurance credit’’ to the defen-
dant would be adjusted based upon actual payrolls
incurred in the project and the final contract amount.
This ‘‘credit’’ would reflect any change in the subcon-
tractor’s insurance costs throughout the project. If, con-
versely, the subcontractor overestimated its insurance
costs, the subcontractor would be ‘‘credited
accordingly.’’
The change orders themselves reflect this under-
standing of the change order process. United Anco’s
original bid to the defendant included an insurance
cost of $69,877.68. The defendant subsequently issued
a change order reducing United Anco’s subcontract
price by that exact amount. Additionally, after the
defendant implemented the CCIP, Ducci Electrical
asked Instrument Sciences to provide its normal insur-
ance cost to complete its work, because Ducci Electri-
cal’s subcontract with the defendant ‘‘was negotiated
prior to [the] CCIP.’’23 Instrument Sciences provided
an insurance cost of $19,945.95. Ducci Electrical then
issued a change order to Instrument Sciences’ subcon-
tract in that exact amount. Later, when United Anco’s
payroll significantly increased, resulting in a new insur-
ance cost of $1,156,604.04, the defendant issued addi-
tional change orders to deduct this exact amount from
the corresponding increases in United Anco’s sub-
contract.
The plaintiffs and the dissent have not established
the existence of a genuine issue of material fact with
respect to any relationship between the change orders
to the subcontracts and the CCIP premium. The
$1,150,465 CCIP insurance premium paid by the defen-
dant encompassed workers’ compensation coverage for
dozens of subcontractors involved in the project, not
just United Anco, Ducci Electrical, and Instrument Sci-
ences. See footnote 5 of this opinion. The insurance
rate to calculate this premium was $5.92 per $100 of
payroll. This rate was used, in conjunction with the
aggregate payroll for all remaining work on the project
by the defendant and its subcontractors, to calculate
the CCIP premium. United Anco, however, used its own
insurance rate of $10.93 per $100 of payroll to calculate
its insurance costs. Similarly, Ducci Electrical and
Instrument Sciences used their insurance rates of $5.38
and $8.97 per $100 of payroll, respectively, to calculate
their costs. Thus, United Anco’s and Instrument Sci-
ences’ insurance costs, as specified in their bids and
reflected in their change orders, did not directly relate
to the CCIP insurance premium.
Moreover, the manual and insurance policies also
confirm that the defendant would pay the entire cost
of the workers’ compensation coverage provided to all
subcontractors under the CCIP. The manual states that
the defendant ‘‘provides’’ and ‘‘will furnish’’ workers’
compensation insurance ‘‘for the benefit of all enrolled
parties.’’ The manual characterizes the defendant as the
‘‘[s]ponsor’’ of the program, and explicitly states that
it ‘‘pays the cost of the CCIP insurance coverage.’’ The
CCIP enrollment application further states that the
‘‘[p]remiums for [the] program are the responsibility
of [the defendant].’’ (Emphasis added.) Additionally, the
insurance policies issued to the defendant, United Anco,
and Instrument Sciences all describe the defendant as
the ‘‘[s]ponsor’’ of the CCIP, and contain the following
sentence: ‘‘This policy is issued at the direction of the
[s]ponsor, who shall be solely responsible for payment
of [the] premium.’’24 (Emphasis added.)
Consistent with this documentary evidence, Daniel
Cretella, the defendant’s financial analyst, testified at
his deposition that the change orders represented the
subcontractors’ costs to procure their own insurance
for the project, had a CCIP not been in place, and not
the costs of the CCIP. He testified that the change orders
had ‘‘nothing to do with the cost of the CCIP’’ and
instead represented ‘‘the particular subcontractor’s cost
to purchase insurance had they been purchasing insur-
ance.’’ He explained that the ‘‘payroll that [the subcon-
tractors] were expending had a rate associated with
[it]. That rate included the cost of insurance had they
been providing the insurance. So the [change orders]
carve out [those] insurance costs . . . because we are
now providing that.’’ (Emphasis added.) With respect
to the defendant’s subsequent change orders based on
the subcontractors’ increased payrolls, Cretella
explained that the subcontractors ‘‘estimat[e] at the
start of this process what their payroll is going to be
that they expend. If their payroll exceeds that . . . then
their cost of insurance . . . would have gone up. So,
therefore, the subcontract should have been reduced by
that amount . . . .’’ (Emphasis added.) Cretella further
testified, ‘‘[w]e back out the insurance cost that . . .
we were now purchasing based on their actual cost
that would have been included in their bid . . . .’’
(Emphasis added.) Cretella also confirmed that the
defendant was ‘‘responsible for all premiums [and] all
deductibles’’ under the policy, and that the defendant
‘‘pa[id] the premium 100 percent.’’25 Neither the plain-
tiffs nor the dissent point to any evidence in the record
disputing Cretella’s financial analysis of the relationship
between the subcontractors’ insurance costs and the
CCIP.26
The plaintiffs and the dissent argue, however, that
several sections of the manual support their contention
that the subcontractors actually paid the costs of the
CCIP through the change order process.27 They point
to one section of the manual stating that the defendant
‘‘will, when due, on behalf of the subcontractor[s],’’ pay
the ‘‘CCIP [i]nsurance [a]mount’’ to the relevant insur-
ance company. (Emphasis added.) The plaintiffs also
note the manual contains a section titled ‘‘identifying
subcontractor insurance costs’’ as detailing ‘‘how [the]
CCIP insurance amounts are paid for.’’ (Emphasis
added.) Lastly, the plaintiffs point to a provision of the
manual stating that the subcontractors’ insurance costs
would be ‘‘taken against’’ their contracts.
We disagree with the plaintiffs’ and dissent’s argu-
ment that these sections of the manual raise a genuine
issue of material fact as to whether the defendant bore
the costs of the workers’ compensation benefits pro-
vided to Thompson and McVay. The defendant did, in
fact, pay the CCIP premium ‘‘on behalf of the subcon-
tractor[s],’’ because the subcontractors received the
benefit of workers’ compensation coverage under the
CCIP, rather than having to provide their own coverage.
This language in the manual therefore does not suggest
that the defendant served as a mere pass-through for
the costs of the CCIP. Additionally, the section of the
manual describing ‘‘how [the] CCIP insurance amounts
are paid for’’ emphasizes that the defendant ‘‘pays the
cost of the CCIP insurance coverage.’’ Thus, this section
of the manual does not necessarily indicate that the
cost of the CCIP is calculated and paid for during the
bidding and change order processes.28 Furthermore, the
manual’s statement that the subcontractors’ insurance
costs would be ‘‘taken against’’ their contracts does not
raise a genuine question of whether the subcontractors
directly reimbursed the defendant for the costs of the
CCIP. The defendant had no choice but to ‘‘take’’ these
costs ‘‘against’’ its subcontracts in order to avoid double
paying for the subcontractors’ insurance coverage.29
Otherwise, the defendant would have paid its subcon-
tractors to provide their own insurance coverage and
paid for the same coverage under the CCIP. Such ‘‘dupli-
cative insurance coverage . . . would be contrary to
our long-standing public policy against economic
waste.’’ Misiti, LLC v. Travelers Property Casualty Co.
of America, 308 Conn. 146, 167–68 n.12, 61 A.3d 485(2013); see also DiLullo v. Joseph, 259 Conn. 847, 854,
792 A.2d 819 (2002) (‘‘[t]his duplication of insurance
would, in our view, constitute economic waste’’). We,
therefore, conclude that no genuine issue of material
fact exists as to whether the defendant ‘‘paid compensa-
tion benefits’’ to Thompson and McVay under § 31-291.
Accordingly, the trial court properly rendered summary
judgment in favor of the defendant on the plaintiffs’
claims.
The judgment is affirmed.
In this opinion PALMER, ZARELLA, ESPINOSA, VER-
TEFEUILLE and LAVINE, Js., concurred.
1
General Statutes § 31-291 provides: ‘‘When any principal employer pro-
cures any work to be done wholly or in part for him by a contractor, or
through him by a subcontractor, and the work so procured to be done is a
part or process in the trade or business of such principal employer, and is
performed in, on or about premises under his control, such principal
employer shall be liable to pay all compensation under this chapter to the
same extent as if the work were done without the intervention of such
contractor or subcontractor. The provisions of this section shall not extend
immunity to any principal employer from a civil action brought by an injured
employee or his dependent under the provisions of section 31-293 to recover
damages resulting from personal injury or wrongful death occurring on or
after May 28, 1988, unless such principal employer has paid compensation
benefits under this chapter to such injured employee or his dependent for
the injury or death which is the subject of the action.’’
2
We note that the present case was commenced on March 10, 2011, by
the following plaintiffs: Elvira R. Gonzalez, James L. Thompson II, Carol M.
Thompson, Robert Edwards, Dorry Edwards, Ned Remondi, Laurie
Remondi, Salvatore Candelora, Debra Candelora, Wayne Bosquet, and Oluf
Olsen. On September 23, 2013, the trial court issued an order realigning the
parties in the present case pursuant to General Statutes § 52-108 and Practice
Book § 9-19. Specifically, the trial court ordered the addition of James McVay
as a plaintiff and the removal of all of the original plaintiffs with the exception
of James L. Thompson II and Carol M. Thompson. In the interest of simplicity,
we collectively refer to these three individuals as the plaintiffs.
We further note that the sole count of the operative complaint pertaining
to Carol M. Thompson alleges loss of consortium, a claim that is derivative
of the negligence and strict liability claims alleged by her husband, James
L. Thompson II. See, e.g., Hopson v. St. Mary’s Hospital, 176 Conn. 485,
494, 408 A.2d 260 (1979). Unless otherwise noted, all references to Thompson
hereinafter are to James L. Thompson II.
3
The following additional parties have been named as defendants in the
present case: Keystone Construction & Maintenance Services, Inc.; Kleen
Energy Systems, LLC; Bluewater Energy Solutions, Inc.; Power Plant Man-
agement Services, LLC; WorleyParsons Group, Inc.; Spectra Energy
Operating Company, LLC; and Siemens Energy, Inc. None of these additional
defendants are, however, involved in the present appeal. In the interest
of simplicity, all references to the defendant hereinafter are to O & G
Industries, Inc.
4
We transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1.
5
As of February 7, 2010, the defendant’s CCIP provided workers’ compen-
sation coverage for approximately eighty-five enrolled subcontractors.
6
We note that, although the record does not appear to include the change
order between the defendant and Ducci Electrical, the existence of that
transaction is supported by the deposition testimony of Daniel Cretella, the
defendant’s financial analyst.
7
The manual ‘‘[g]enerally describes the structure of the CCIP,’’ ‘‘[i]dentifies
responsibilities of the various parties involved in the [p]roject,’’ ‘‘[p]rovides
a basic description of CCIP coverage,’’ ‘‘[d]escribes audit and administrative
procedures,’’ and ‘‘[p]rovides answers to basic questions about the CCIP.’’
Daniel Cretella, the defendant’s financial analyst, testified at his deposition
in this case that the manual should have been provided to all enrolled subcon-
tractors.
8
The defendant’s apparent purpose in monitoring the subcontractors’
costs to procure their own insurance, after the CCIP was implemented,
was to establish the ‘‘[v]erified [b]lended [p]ayroll [r]ate’’ for the CCIP.
Additionally, the defendant ‘‘reserve[d] the right to terminate or modify the
CCIP’’ at any time. In the event that the defendant terminated the CCIP,
the manual stated that the defendant ‘‘may require the subcontractors to
procure and maintain [alternative] insurance coverage.’’ Thus, the defendant
may have wished to monitor the subcontractors’ normal insurance costs to
complete their work as necessary information in the event it decided to
terminate the CCIP.
9
Other than the defendant’s first change order to United Anco’s subcon-
tract, which deducted the insurance costs specified in United Anco’s original
bid, only one other change order appears in the record on appeal. This
change order, numbered sixteen, deducts $786,726 from United Anco’s sub-
contract for its ‘‘[i]nsurance [p]remium.’’ The order states that $1,156,604
represents United Anco’s ‘‘total insurance premium cost,’’ and that because
$369,878 had already been deducted from the subcontract through previous
change orders, an additional $786,726 would be deducted from the contract.
Instrument Sciences’ payrolls and insurance costs also apparently increased
during the course of the project, but additional change orders between Ducci
Electrical and Instrument Sciences are not contained within the record.
10
The plaintiffs ask us to take judicial notice of several postjudgment
filings in the present case concerning the cause of the explosion. The plain-
tiffs originally referenced these filings in their brief and included them in
their appendix. We subsequently granted the defendant’s motion to strike
those filings from the record and the corresponding references in the brief.
Accordingly, we decline to take judicial notice of these filings because they
are irrelevant to the issue before this court. See Drabik v. East Lyme, 234
Conn. 390, 398, 662 A.2d 118 (1995) (‘‘[j]udicial notice . . . meets the objec-
tive of establishing facts to which the offer of evidence would normally be
directed’’ [internal quotation marks omitted]); cf. State v. Gaines, 257 Conn.
695, 705 and n.7, 778 A.2d 919 (2001) (taking judicial notice of transcript
relevant to issue of whether defense attorney had conflict of interest); Karp
v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633(1972) (taking judicial notice of filing relevant to issue of whether trial court
had jurisdiction over case).
11
As of October 17, 2013, Thompson had received $104,035 in workers’
compensation benefits paid by Old Republic, and McVay had received $6489
in benefits. Although Old Republic technically paid these benefits to Thomp-
son and McVay, it did so in accordance with the workers’ compensation
insurance policies purchased by the defendant. In discussing the requirement
that the principal employer ‘‘pa[y] [workers’] compensation benefits’’ to
obtain immunity, the legislature did not appear to distinguish between bene-
fits paid directly by the principal employer or by an insurance company
pursuant to a policy purchased by the principal employer. When asked
whether a principal employer that purchases workers’ compensation insur-
ance for its subcontractors would be immune from civil actions, one repre-
sentative answered, ‘‘You’re absolutely right . . . . If the principal employer
or general contractor wanted to go out and buy workers’ compensation
insurance for [its] subcontractors’ employees at the premiums they are
today, so be it. I guess he could. And once he paid those benefits, yes, he
would be immune because he’s in fact the person paying the workers’
comp[ensation] benefits.’’ (Emphasis added.) 31 H.R. Proc., Pt. 11, 1988
Sess., p. 3729, remarks of Representative Adamo. Thus, it may be said that
the defendant paid workers’ compensation benefits to Thompson and McVay
by purchasing workers’ compensation insurance policies from Old Republic.
See Bishel v. Connecticut Yankee Atomic Power Co., 62 Conn. App. 537,
539–41, 771 A.2d 252 (granting summary judgment in favor of principal
employer under § 31-291 when insurance company paid workers’ compensa-
tion benefits to injured employees pursuant to owner controlled insurance
program funded by principal employer), cert. denied, 256 Conn. 915, 773
A.2d 943 (2001).
12
General Statutes § 31-293 (a) provides in relevant part: ‘‘When any injury
for which compensation is payable under the provisions of this chapter has
been sustained under circumstances creating in a person other than an
employer who has complied with the requirements of subsection (b) of
section 31-284, a legal liability to pay damages for the injury, the injured
employee may claim compensation under the provisions of this chapter,
but the payment or award of compensation shall not affect the claim or
right of action of the injured employee against such person, but the injured
employee may proceed at law against such person to recover damages for
the injury . . . .’’
We note that, although § 31-293 (a) was amended by our legislature after
the commencement of the present case; see Public Acts 2011, No. 11-205,
§ 1; that amendment has no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
13
The three conditions that must exist for a contractor to qualify as a
principal employer are: ‘‘(1) the relation of principal employer and contractor
must exist in work wholly or in part for the former; (2) the work must be
on or about premises controlled by the principal employer; [and] (3) the
work must be a part or process in the trade or business of the principal
employer.’’ (Internal quotation marks omitted.) Gigliotti v. United Illumi-
nating Co., 151 Conn. 114, 118, 193 A.2d 718 (1963).
14
General Statutes § 31-284 (a) provides in relevant part: ‘‘An employer
who complies with the requirements of subsection (b) of this section shall
not be liable for any action for damages on account of personal injury
sustained by an employee arising out of and in the course of his employment
. . . but an employer shall secure compensation for his employees as pro-
vided under this chapter . . . .’’
15
Similarly, the general definitions statute, General Statutes § 1-1, also
does not define the words ‘‘pay’’ or ‘‘paid.’’
16
We note that the common usage of the word ‘‘pay’’ has not changed since
the legislature enacted § 31-291, rendering reliance on current definitions
instructive for the purpose of statutory interpretation. See State v. Menditto,
315 Conn. 861, 866, 110 A.3d 410 (2015) (‘‘[b]ecause we seek to discern the
intent of the legislature [at the time of enactment], dictionaries in print
at that time are especially instructive’’). Specifically, the Random House
Dictionary (2d Ed. 1987) defines ‘‘pay’’ as ‘‘to give over (a certain amount
of money) in exchange for something’’ and ‘‘to transfer money . . . as in
making a purchase . . . .’’
17
The differences in the parties’ proposed definitions may be illustrated
with the following hypothetical example: A and B go to lunch and A pays
for lunch with his credit card. Later, B reimburses A for his portion of the
lunch in cash. Who has ‘‘paid’’ for B’s lunch? Under the plaintiffs’ definition,
B has paid for his own lunch. Under the defendant’s definition, A has paid
for B’s lunch, regardless of the fact that B later reimbursed A for the lunch.
18
We note that similar ambiguities have been considered in other states.
See Everett v. State Farm Indemnity Co., 358 N.J. Super. 400, 407, 818 A.2d
372 (2002) (considering whether ‘‘payment of benefits’’ referred exclusively
to monetary payment by insurance company to insured, or might also include
credit against deductible or co-payment), aff’d, 175 N.J. 567, 818 A.2d 319(2003); Beaver v. Liston, 76 Pa. Commw. 619, 623, 464 A.2d 679 (1983)
(‘‘ ‘[p]ay’ is a broad, general term lacking particular meaning and encom-
passing myriad forms of remuneration’’).
19
Pursuant to General Statutes § 31-355, the second injury fund provides,
inter alia, workers’ compensation benefits to injured employees when their
employers and their employers’ insurers fail to pay such benefits. See, e.g.,
Dechio v. Raymark Industries, Inc., 114 Conn. App. 58, 60, 968 A.2d 450(2009) (discussing history and purpose of second injury fund), aff’d, 299
Conn. 376, 10 A.3d 20 (2010).
20
Likewise, in the absence of a CCIP, subcontractors may include their
costs to provide workers’ compensation insurance for their employees in
their bids to the general contractor, who would include such costs in its
bid to the owner, and so on. Even though the general contractor and,
ultimately, the owner of the project, ‘‘bear the cost’’ of such insurance, the
subcontractor paid for the insurance in the first instance. As such, the
subcontractor would be immune from claims by its own employees. The
general contractor would not, however, enjoy such immunity. We agree
with the trial court that ‘‘the common usage of the word ‘paid’ does not
contemplate an accounting of debits and credits and an economic analysis
as to which party has in fact incurred a permanent change in financial
position as a result of a transaction.’’
21
Indeed, we note that the trial court’s interpretation of § 31-291 on this
point conflicts with other Superior Court decisions on the subject. See, e.g.,
Gall v. Smith, Superior Court, judicial district of New Haven, Docket No.
CV-99-0433624-S (May 21, 2002) (denying summary judgment in favor of
principal employer on basis of immunity under § 31-291 because issue of
fact existed as to whether employer ‘‘paid all of the workers’ compensation
benefits’’ to which deceased employee’s estate and his dependents were
entitled); Barry v. Ninth Square Project, Superior Court, judicial district of
New Haven, Docket No. CV-96-0385898-S (March 26, 1999) (denying principal
employer’s motion for summary judgment pursuant to § 31-291 because,
although employer submitted evidence showing ‘‘payment of a portion of
the [workers’] compensation premium,’’ employer ‘‘fail[ed] to demonstrate
that [it] paid the entire workers’ compensation premium’’).
22
Moreover, if we were to hold that principal employers could pay only
some of the injured employees’ workers’ compensation benefits to obtain
immunity, it would be unclear at what point the principal employer had paid
enough benefits to receive immunity. In the absence of specific legislative
language to this effect, we cannot condone the adoption of such a seemingly
unworkable standard by judicial act. See Benvenuto v. Mahajan, 245 Conn.
495, 501, 715 A.2d 743 (1998) (‘‘it is more efficient, for the courts and the
parties, to have a bright line rule because a case-by-case approach . . . .
promotes, rather than eliminates, uncertainty’’ [internal quotation marks
omitted]); see also Durniak v. August Winter & Sons, Inc., 222 Conn.
775, 781, 610 A.2d 1277 (1992) (‘‘We have repeatedly observed that our act
represents a complex and comprehensive statutory scheme balancing the
rights and claims of the employer and the employee arising out of work-
related personal injuries. Because of the comprehensive nature of the act,
the responsibility for carving out exceptions from any one of its provisions
belongs to the legislature and not to the courts.’’).
23
The manual states that the subcontractors are ‘‘solely responsible for
recovering insurance costs’’ from subcontractors of lower tiers.
24
The plaintiffs and the dissent argue that the fact that the defendant is
not listed as an additional insured on the policies issued to United Anco
and Instrument Sciences implies that the defendant did not bear the costs
of the CCIP. Old Republic issued the defendant its own policy, however,
and the defendant therefore had no need to be included on the policies
issued to United Anco and Instrument Sciences. Moreover, what is important
is that those policies listed the defendant as the sponsor of the CCIP, and
clarified that the defendant shall be ‘‘solely responsible for payment of
[the] premium.’’
25
The following exchange also occurred between the plaintiffs’ counsel
and Cretella:
‘‘Q. . . . I just want you to tell me if I understand the way the CCIP
worked correctly; that is that [the defendant] paid an initial amount for the
premium and . . . once a contractor or subcontractor would come within
the CCIP, there would be a calculation . . . as to what that contractor or
subcontractor’s premium would be within the CCIP, and [the defendant]
would bill the contractor or subcontractor for that premium? . . .
‘‘A. No. I don’t believe that’s an accurate depiction at all. . . .
‘‘Q. Did [the defendant] bill in any fashion United Anco for premiums for
workers’ [compensation]?
‘‘A. No.
‘‘Q. Did they use change orders to bill them?
‘‘A. No.
‘‘Q. Were there change orders associated with CCIP premiums?
‘‘A. No. . . .
‘‘Q. Did any of the contractors or subcontractors pay anything [toward]
the CCIP premiums?
‘‘A. No.
‘‘Q. Did they ever reimburse [the defendant] anything for the CCIP
premiums?
‘‘A. No.’’
26
We respectfully disagree with the plaintiffs’ and dissent’s contention
that Cretella ‘‘admitted’’ that ‘‘the defendant did not provide the CCIP to
the subcontractors for free.’’ When asked directly whether the defendant
provided workers’ compensation insurance to its subcontractors for free,
Cretella stated, ‘‘[w]e didn’t give them anything, so no. We were providing
the insurance.’’ (Emphasis added.) Cretella then went on to clarify that
the subcontractors gave no consideration in exchange for receiving the
insurance coverage.
27
The plaintiffs and the dissent also contend that the defendant profited
from the CCIP, and argue that this fact supports their claim that the defendant
‘‘billed’’ its subcontractors for the costs of the CCIP. That the CCIP was
economically advantageous for the defendant does not, however, affect the
fact that it ultimately bore the costs of the CCIP. The defendant may have
opted to implement the CCIP because it could provide workers’ compensa-
tion insurance coverage at a lower cost than would be incurred were its
subcontractors to be charged with providing such coverage. The manual
required the subcontractors to include any profit and overhead that they
typically charge on their insurance premiums in their bids to the defendant.
United Anco included a 10 percent profit and overhead amount in its bid,
and Ducci Electrical included a 16.3 percent profit and overhead amount
in its bid. These amounts increased the subcontractors’ insurance costs
accordingly, and were incorporated into the costs later deducted from their
contracts. In other words, the subcontractors’ total insurance costs, includ-
ing the profit and overhead amounts, were added and then deducted from
their contracts. The fact that the defendant avoided having to pay the subcon-
tractors a profit on their insurance premiums by implementing the CCIP
does not change the fact that the defendant did pay the premium, deductible,
and other costs for the CCIP.
28
The plaintiffs and the dissent argue that, because Cretella testified that
a section of the manual describing adjustments to the subcontractors’ con-
tracts for their insurance costs was ‘‘inaccurate,’’ a genuine issue of material
fact exists as to whether the defendant bore the costs of the CCIP. The
manual expressly states, however, that in the event that any provisions of
the manual conflict with the CCIP insurance policies, the policies ‘‘shall
govern.’’ Consistent with this statement, Cretella explained that he did not
seek to change the language of the manual because ‘‘[t]he manual is pretty
clear that the policies govern. And to the extent that there’s anything in
[the manual] that’s contradictory, defer to the policies. . . . The policies
are pretty clear as to who owned [the] obligation to pay [the] premiums
and deductibles.’’ Indeed, as stated previously in this opinion, the CCIP
insurance policies explicitly state that the defendant pays the costs of
the CCIP.
29
Cf. Djeddar v. Rowley Spring & Stamping Corp., Superior Court, judicial
district of New Britain, Docket No. CV-06-5001837-S (August 25, 2008) (deny-
ing summary judgment in favor of principal employer because ‘‘there was
no evidence of any agreement between [the employer] and [the contractor]
obligating [the contractor] to provide workers’ compensation coverage . . .
including no agreement that any part of [the employer]’s payment to [the
contractor] would be used to purchase workers’ compensation coverage’’);
Geherty v. Connecticut Yankee Atomic Power Co., Superior Court, judicial
district of Hartford, Docket No. CV-95-0546860-S (April 20, 1998) (denying
summary judgment in favor of principal employer because employer failed to
show that it was ‘‘primarily responsible for providing workers’ compensation
insurance to the [employee] . . . that [it] paid a separate fee to cover [the
contractors’] expenses for such insurance, or that [it] or [its] insurance
carrier paid such workers’ compensation benefits’’ to employee).