Pacific Ins. Co., Ltd. v. Champion Steel, LLC , 323 Conn. 254 ( 2016 )

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PACIFIC INSURANCE COMPANY, LIMITED v.
CHAMPION STEEL, LLC, ET AL.
(SC 19402)
(SC 19403)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued April 4—officially released September 27, 2016
Jonathan M. Freiman, with whom, on the brief, was
Jenny R. Chou, for the appellant in Docket No. SC
19402 (named plaintiff).
Jenny R. Chou, with whom, on the brief, was Jona-
than M. Freiman, for the appellant in Docket No. SC
19403 (proposed intervenor Connecticut Reliable Weld-
ing, LLC).
Sylvia Marisa Ho, with whom were Kelly B. Gaer-
tner, and, on the brief, Kevin C. Hines, Bryan J. Hass
and Paul Erickson, for the appellees in Docket Nos.
SC 19402 and SC 19403 (defendants).
Opinion
ZARELLA, J. The dispositive issue in the present
appeals is whether a workers’ compensation insurer
can maintain an equitable subrogation claim against
third-party tortfeasors to recover benefits it has paid,
on behalf of an insured employer, to an injured
employee. We conclude that it can.
The facts and procedural history giving rise to this
appeal can be succinctly stated. On May 17, 2011, James
Doughty, an employee of Stanford Dulaire, doing busi-
ness as Connecticut Reliable Welding, LLC (Reliable),
was working at a construction site when the retractable
lifeline he was wearing failed, causing him to fall and
sustain physical injuries. Because Doughty’s injuries
occurred during the course of his employment, Reliable
was required to pay benefits under the Workers’ Com-
pensation Act (act), General Statutes § 31-275 et seq.
The plaintiff, Pacific Insurance Company, Limited
(Pacific), a writing company of The Hartford Financial
Services Group, Inc., had issued an insurance policy
providing workers’ compensation coverage to Reliable,
and, therefore, Pacific paid Doughty workers’ compen-
sation benefits.
In May, 2013, Pacific brought the present action
against the defendants, Champion Steel, LLC, Shepard
Steel Company, Inc., and Dimeo Construction Company
(collectively, defendants), seeking to recover the bene-
fits it had paid to Doughty.1 In its complaint, Pacific
essentially alleged that the defendants were negligent
in their failure to provide an adequate fall arrest system
at the work site, which negligence, Pacific avers, caused
Doughty’s injuries. The defendants filed separate
motions to dismiss the complaint, claiming that the trial
court lacked subject matter jurisdiction because Pacific
did not have standing to bring an action under either
General Statutes § 31-293 or the common-law doctrine
of equitable subrogation. Pacific objected to the defen-
dants’ motions to dismiss and also filed an amended writ
and amended complaint, adding Reliable as a plaintiff.
Pacific also filed a motion to substitute Reliable as the
party plaintiff, and Reliable filed a motion to intervene
in the action. The defendants objected to Pacific’s
motions to substitute party plaintiff and Reliable’s
motion to intervene. On March 17, 2014, the trial court,
Wiese, J., denied Pacific’s motion to substitute party
plaintiff and granted the defendants’ motions to dismiss
Pacific’s complaint. The trial court did not address Reli-
able’s motion to intervene, instead concluding that it
was rendered moot by the dismissal of Pacific’s com-
plaint. Pacific and Reliable separately appealed from
the judgment of the trial court rendered in favor of the
defendants, and we transferred the appeals to this court.
Pacific makes four arguments in its appeal, Docket
No. SC 19402. Specifically, Pacific claims that the trial
court improperly: (1) considered the legal sufficiency
of its equitable subrogation claim, the standard applica-
ble to reviewing a motion to strike, when addressing
the defendants’ motions to dismiss, and, therefore,
incorrectly concluded that Pacific did not have standing
to bring, and the court did not have subject matter
jurisdiction to consider, an equitable subrogation claim
against the defendants; (2) concluded that workers’
compensation insurers cannot bring equitable subroga-
tion claims against third-party tortfeasors; and (3)
denied Pacific’s motion to substitute Reliable as the
party plaintiff. In addition, Pacific contends that it has
a statutory claim for subrogation under § 31-293, and
it should be allowed to amend its complaint to assert
that claim because the defendants’ motions to dismiss
were, in effect, motions to strike.2 In response, the
defendants argue that: (1) the motions to dismiss were
appropriate in this context and the trial court properly
granted the motions because the act does not grant the
trial court the power to hear actions brought by insurers
against third-party tortfeasors; (2) the trial court prop-
erly concluded that insurers do not have an equitable
right of subrogation in the context of workers’ compen-
sation and the act does not provide Pacific with a direct
cause of action; and (3) the denial of Pacific’s motion
to substitute is not properly before the court and cannot
be addressed, and, alternatively, the motion was prop-
erly denied.
In its separate appeal, Docket No. SC 19403, Reliable
claims that the trial court improperly: (1) concluded
that Reliable did not have standing; (2) denied Pacific’s
motion to substitute Reliable as the plaintiff; and (3)
concluded that Reliable’s motion to intervene was ren-
dered moot. At oral argument, counsel for both Reliable
and the defendants agreed that if we concluded in SC
19402 that Pacific properly asserted an equitable subro-
gation claim, we would not need to reach the issues in
SC 19403. Accordingly, we do not address Reliable’s
claims on appeal. Moreover, because we do not reach
Reliable’s claims, we need not consider the defendants’
argument that Reliable did not have standing to invoke
this court’s jurisdiction.
Our review of a trial court’s ruling on a motion to
dismiss is de novo and we indulge every presumption
favoring jurisdiction. Cuozzo v. Orange, 315 Conn. 606,
614, 109 A.3d 903 (2015). In addition, because the issue
of whether a workers’ compensation insurer may assert
an equitable subrogation claim is a question of law, our
review of that issue, accordingly, is also de novo.
I
We first address the jurisdictional issue. In their mem-
oranda of law in support of their motions to dismiss,
the defendants argued that Pacific did not have standing
to bring this action because Pacific had not cited any
authority recognizing a workers’ compensation insur-
er’s right to bring an equitable subrogation claim and,
traditionally, employers and their insurers did not have
a right to assert such a claim against third parties who
had caused harm to an employee.3 The trial court agreed
and dismissed Pacific’s complaint, reasoning that
Pacific had not cited any controlling authority that had
expanded equitable subrogation to the workers’ com-
pensation context. It further reasoned that the act devi-
ated from the common law by creating a right for the
employer to pursue an action against a third party and,
therefore, the act must be strictly construed. The trial
court further reasoned that the act is a ‘‘ ‘complex and
comprehensive statutory scheme,’ ’’ and, consequently,
it is for the legislature, not the courts, to carve out
exceptions. (Emphasis in original.)
In its appeal to this court, Pacific argues that the trial
court improperly considered the legal sufficiency of
its equitable subrogation claim, which is the standard
applicable to reviewing a motion to strike, rather than
Pacific’s standing to assert such a claim. In essence, its
claim is that whether a common-law claim exists is not
jurisdictional and the proper procedural tool for testing
whether such a claim exists is a motion to strike. We
need not decide whether the trial court improperly con-
sidered the legal sufficiency of Pacific’s claims in
addressing the defendants’ motions to dismiss, or
whether the proper procedural vehicle for testing
whether a claim exists is a motion to dismiss or a motion
to strike, because we conclude that Pacific can properly
assert an equitable subrogation claim. Moreover, we
agree with Pacific’s argument that, due to its obligation
to pay workers’ compensation benefits to Doughty as
a result of the defendants’ negligence, it has a colorable
claim of injury and a direct interest in the outcome of
this action, and, therefore, standing. See, e.g., Hand-
some, Inc. v. Planning & Zoning Commission, 317
Conn. 515, 550, 119 A.3d 541 (2015) (Standing generally
exists ‘‘when a complainant makes a colorable claim
of direct injury [that] he has suffered or is likely to
suffer, in an individual or representative capacity. Such
a personal stake in the outcome of the controversy . . .
provides the requisite assurance of concrete
adverseness and diligent advocacy.’’ [Internal quotation
marks omitted.]).
II
We next consider whether a workers’ compensation
carrier can maintain a claim for equitable subrogation
against a third-party tortfeasor whose negligence
caused harm to an employee. Subrogation is a doctrine
of equity that allows one party, such as an insurer
(known as the subrogee), to assert the legal rights or
claims of another person, such as an insured (known
as the subrogor), against a third party, for example,
a tortfeasor, when the subrogee has indemnified the
subrogor for a loss caused by the third-party tortfeasor.
See Fireman’s Fund Ins. Co. v. TD Banknorth Ins.
Agency, Inc., 309 Conn. 449, 455, 72 A.3d 36 (2013) (‘‘In
its simplest form, subrogation allows a party who has
paid a debt to step into the shoes of another [usually
the debtee] to assume his or her legal rights against a
third party to prevent that party’s unjust enrichment.
. . . The common-law doctrine of . . . equitable sub-
rogation therefore enables an insurance company that
has made a payment to its insured to substitute itself
for the insured and to proceed against the responsible
third party.’’ [Citation omitted; internal quotation marks
omitted.]). Subrogation, which evolved from the civil
law, is intended to do justice ‘‘ ‘without regard to form
or mere technicality.’ ’’ Home Owners’ Loan Corp. v.
Sears, Roebuck & Co., 123 Conn. 232, 238, 193 A. 769
(1937). ‘‘The object of [equitable] subrogation is the
prevention of injustice. It is designed to promote and
to accomplish justice, and is the mode which equity
adopts to compel the ultimate payment of a debt by
one who, in justice, equity, and good conscience, should
pay it.’’ (Internal quotation marks omitted.) Westchester
Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 371,
672 A.2d 939 (1996). Thus, equitable subrogation works
to prevent a tortfeasor from being unjustly enriched by
the fortuitous circumstance that the victim’s loss is
covered by an insurer. See Wasko v. Manella, 269 Conn.
527, 548–49, 849 A.2d 777 (2004); id., 549 (‘‘we see no
logical reason for the defendant to be unjustly enriched
merely because he burned down the home of a party
that had the foresight to purchase fire insurance’’). The
doctrine also serves equity by avoiding double recovery
in cases where the insured may recover from both the
tortfeasor and insurer. See Fireman’s Fund Ins. Co. v.
TD Banknorth Ins. Agency, Inc., supra, 456. ‘‘As now
applied, the doctrine of equitable subrogation is broad
enough to include every instance in which one person,
not acting as a mere volunteer or intruder, pays a debt
for which another is primarily liable, and which in equity
and good conscience should have been discharged by
the latter.’’ (Internal quotation marks omitted.) West-
chester Fire Ins. Co. v. Allstate Ins. Co., supra, 371.
Pacific argues that this court has recognized an insur-
er’s broad, common-law right to bring a subrogation
action when it has paid an insured for a loss caused
by a third-party tortfeasor and that the workers’ com-
pensation statutory scheme has not abrogated that
right. It further argues that public policy supports recog-
nizing an equitable subrogation claim because an
employer or an employee may not have an incentive to
bring an action against the tortfeasor.
We agree. In our view, it is beyond dispute that equita-
ble subrogation has long existed at common law, and
that the doctrine has long been available to an insurer
seeking reimbursement for a loss it indemnifies when
a third party is liable for such loss. See, e.g., Regan v.
New York & New England Railroad Co., 60 Conn. 124,
131, 22 A. 503 (1891) (‘‘[i]t has hitherto been established
by a line of decisions reaching backward more than a
century and substantially unbroken by dissent . . .
that where the insurer has indemnified the owner of
the goods lost, he is entitled to be subrogated to all the
means of indemnity which the owner held against the
party causing the loss and primarily liable therefor’’);
Connecticut Mutual Life Ins. Co. v. New York & New
Haven Railroad Co., 25 Conn. 265, 277 (1856) (‘‘[b]y
virtue of this doctrine, there is no doubt of the right of
an insurer, who has paid a loss, to use the name of the
insured, in order to obtain redress from the author of
the wrong’’);4 Orvis v. Newell, 17 Conn. 97, 101 (1845)
(‘‘[the] right of substitution or subrogation rests upon
the basis of mere equity and benevolence’’ [internal
quotation marks omitted]); see also Wasko v. Manella,
supra, 269 Conn. 538 n.9 (citing Orvis v. Newell, supra,
97, for proposition that insurers had subrogation rights
at common law). In fact, in Regan v. New York & New
England Railroad Co., supra, 124, decided in March,
1891, this court noted that an insurer’s right of subroga-
tion had existed, at that time, for more than one century;
id., 131; and that the decisions of the Supreme Court
of the United States and the high courts of many of our
sister states were in accord. Id., 131–33. It is fundamen-
tal that if the legislature wishes to abrogate the common
law, it must do so expressly. See Caciopoli v. Lebowitz,
309 Conn. 62, 70, 68 A.3d 1150 (2013) (‘‘[w]e recognize
only those alterations of the common law that are
clearly expressed in the language of the statute’’ [inter-
nal quotation marks omitted]); Chadha v. Charlotte
Hungerford Hospital, 272 Conn. 776, 789, 865 A.2d 1163
(2005) (‘‘[a]lthough the legislature may eliminate a
[common-law] right by statute, the presumption that
the legislature does not have such a purpose can be
overcome only if the legislative intent is clearly and
plainly expressed’’ [internal quotation marks omitted]).
We have not found any provision in the act, and the
defendants have not pointed to any, that abrogates this
long-standing doctrine in the context of workers’ com-
pensation. In other areas of workers’ compensation,
however, the legislature has expressly abrogated the
common law. For example, at common law an employee
was permitted to bring an action against his employer
for injuries he sustained due to the employer’s negli-
gence. See Swain v. O’Loughlin, 80 Conn. 200, 204–205,
67 A. 480 (1907) (sustaining negligence action brought
by injured employee against employer); see also Perille
v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529,
536–40, 494 A.2d 555 (1985) (reviewing history of
employer’s common-law duties to employees). The act
expressly abrogated this common-law cause of action
against the employer. See General Statutes § 31-284 (a)
(‘‘[a]n employer who complies with the requirements
of [the act] 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’’).
It is apparent, therefore, that the legislature knew how
to express its intention to supersede common-law rules.
It is axiomatic that the legislature is presumed to be
aware of the common law when it enacts statutes. See
R.C. Equity Group, LLC v. Zoning Commission, 285
Conn. 240, 257 n.20, 939 A.2d 1122 (2008) (‘‘the legisla-
ture is always presumed to have created a harmonious
and consistent body of law . . . [and] to be aware of
prior judicial decisions involving common-law rules’’
[citation omitted; internal quotation marks omitted]).
Thus, we assume that in crafting the original act, and
the subsequent revisions to the act, the legislature was
aware of the long-standing and strong doctrine of equi-
table subrogation and intentionally did not write a pro-
hibition into the workers’ compensation statutory
scheme.
Our conclusion that a workers’ compensation insurer
may maintain a common-law equitable subrogation
action against a third-party tortfeasor who is liable for
injuries sustained by an employee is also supported
by public policy. First, allowing insurers to bring such
actions serves the public policy of containing the cost
of workers’ compensation insurance. See Quire v.
Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994) (§ 31-
293 [a] implements public policy of containing cost
of workers’ compensation insurance). In some cases,
employees and employers may have no incentive to
bring an action against a third-party tortfeasor who
has caused injury to the employee. For example, an
employee may not wish to incur the cost of litigation
when his injuries have been fully compensated by a
workers’ compensation insurer. Similarly, an employer
may be reluctant to invest time and money into an
action against a third party when it has not provided
any workers’ compensation benefits out of its own
pocket. In such cases, workers’ compensation insur-
ance carriers would be without recourse if we were to
hold that they could not institute equitable subrogation
claims against the third-party tortfeasor, and, thereby,
the costs of workers’ compensation would likely
increase. Second, equitable subrogation actions prevent
the unjust enrichment of tortfeasors in situations in
which the employee and employer do not bring actions
to recover damages caused by the tortfeasors.
The defendants argue that Pacific cannot assert equi-
table subrogation against them because, at common
law, personal injury claims could not be assigned. More-
over, the defendants assert, the act created a right in
the employer that had never before existed—namely,
the right to bring a direct action against a tortfeasor to
recoup workers’ compensation benefits it paid to an
employee for injuries the tortfeasor is legally liable
for—and, in so doing, deviated from the common law.
As a result, the defendants conclude that the employer’s
right must be strictly construed. Because the act allows
an employer to pursue a claim against the tortfeasor,
the defendants aver, it would be inconsistent with the
legislative intent to allow workers’ compensation insur-
ers to assert equitable subrogation claims, presumably
because the statute is silent in regard to insurers’ subro-
gation rights. The defendants, in part, are correct. The
common law prohibited assignment of personal injury
claims and the act created a new right for employers.
See Dodd v. Middlesex Mutual Assurance Co., 242
Conn. 375, 382–83, 698 A.2d 859 (1997). This line of
reasoning, however, confuses the issue. First, as this
court explained in Westchester Fire Ins. Co., there is a
discernible difference between assignment and equita-
ble subrogation, at least in the context of indemnity
insurance. Westchester Fire Ins. Co. v. Allstate Ins. Co.,
supra, 236 Conn. 370, 372–73. In indemnity insurance,
the insurer does not act as a ‘‘mere volunteer,’’ and its
obligation to pay the insured’s loss predates the loss.
Id., 372. Conversely, in an assignment, the assignee vol-
unteers to pay the assignor for its loss only after the
loss has occurred, and, consequently, the assignee does
not have any preexisting obligation to the assignor.
Id., 369–70, quoting Aetna Casualty & Surety Co. v.
Associates Transports, Inc., 512 P.2d 137, 141 (Okla.
1973). Due to this difference, this court stated that the
public policy reasons supporting the common-law pro-
hibition against the assignment of personal injury
claims did not apply to an indemnity insurer’s right
to equitable subrogation. Westchester Fire Ins. Co. v.
Allstate Ins. Co., supra, 373. In such a case, ‘‘we need
not be concerned about unscrupulous interlopers and
litigious persons [who are] to be discouraged from pur-
chasing claims for pain and suffering and prosecuting
them in court as assignees.’’ (Internal quotation marks
omitted.) Id. Thus, a claim brought under the doctrine
of equitable subrogation, such as Pacific’s claim in the
present case, is not an assignment, and, consequently,
the common-law prohibition against the assignment of
personal injury claims does not apply in such a case.
The defendants argue that the enactment of No. 97-
58 of the 1997 Public Acts (P.A. 97-58), which abolished
uninsured motorist insurance carriers’ subrogation
rights, effectively abrogating our holding in Westchester
Fire Ins. Co., is an affirmation by the legislature that
personal injury actions cannot be assigned. Insofar as
the defendants intend to assert, by making this argu-
ment, that P.A. 97-58 abrogated our conclusion in West-
chester Fire Ins. Co. that assignments and equitable
subrogation are distinct, we do not agree. We read the
relevant part of the public act as merely abrogating the
common-law subrogation rights of uninsured motorist
insurance carriers.5 Additionally, even if the enactment
of P.A. 97-58 is a legislative affirmation of the common-
law prohibition against the assignment of personal
injury claims generally, the legislature has specifically
abrogated this rule in the context of workers’ compen-
sation, as subsequently explained in this opinion. See
General Statutes § 31-293 (a).6
Second, an insurer’s right of equitable subrogation is
distinct from an employer’s right to bring an action
against a third-party tortfeasor who harmed an
employee. The employer’s right is statutory and was
created by the act.7 See Dodd v. Middlesex Mutual
Assurance Co., supra, 242 Conn. 381. Prior to the enact-
ment of the act, however, and pursuant to the common-
law prohibition against the assignment of personal
injury claims, the employer had no such right. Id., 382.
Thus, the statute had to expressly provide for the
employer’s right to bring such an action. See Caciopoli
v. Lebowitz, supra, 309 Conn. 70 (legislature’s abroga-
tion of common law must be express). On the other
hand, an insurer’s right of equitable subrogation arises
from the common law, and it existed at the time the
act was enacted. See, e.g., Regan v. New York & New
England Railroad Co., supra, 60 Conn. 131. Accord-
ingly, the legislature did not need to expressly create
the insurer’s right. See Wasko v. Manella, supra, 269
Conn. 538–39 n.9 (‘‘The common law did not permit
the assignment of personal injury actions, and thus the
legislature specifically, and explicitly, had to abrogate
the common law in order to allow an employer to subro-
gate against a tortfeasor. . . . This was accomplished
with the enactment of the [act], and specifically § 31-
293. In the area of insurance contracts, however, equita-
ble principles traditionally allowed subrogation against
the responsible party when an insurer paid for damages
pursuant to an indemnity agreement.’’ [Citation omitted;
emphasis added.]). We conclude, in light of this differ-
ence, that recognizing a workers’ compensation insur-
er’s right of equitable subrogation is not inconsistent
with the act. In fact, because the legislature is presumed
to be aware of the common law when it enacts statutes,
we believe the legislature intended that workers’ com-
pensation insurers be subrogated to the rights of
employers. See, e.g., R.C. Equity Group, LLC v. Zoning
Commission, supra, 285 Conn. 257 n.20. If it did not,
it would have had to explicitly state such intention. See
Chadha v. Charlotte Hungerford Hospital, supra, 272
Conn. 789 (‘‘[a]lthough the legislature may eliminate a
[common-law] right by statute, the presumption that
the legislature does not have such a purpose can be
overcome only if the legislative intent is clearly and
plainly expressed’’ [internal quotation marks omitted]).
Third, we agree with the defendants that the act, and
specifically § 31-293 (a), created a right in employers
that did not exist at common law. The scope of an
employer’s right to intervene in or bring an action
against a third-party tortfeasor, therefore, consists of
only those privileges provided by the statute. See Dodd
v. Middlesex Mutual Assurance Co., supra, 242 Conn.
383 (stating § 31-293 [a] deviates from common law and,
consequently, must be strictly construed). The insur-
er’s right to be subrogated to the employer’s rights
under § 31-293 (a), however, is derived from the com-
mon law. Moreover, equitable subrogation is a judicially
favored doctrine and is generously applied. Westchester
Fire Ins. Co. v. Allstate Ins. Co., supra, 236 Conn. 372
(‘‘[s]ubrogation is a highly favored doctrine . . . which
courts should be inclined to extend rather than restrict’’
[citations omitted]). Thus, the scope of the employer’s
rights under § 31-293 (a), for example, against a person
who constitutes a third party, must be derived from the
statute, but an insurer’s right to be subrogated to, and
therefore assert, the employer’s rights does not. Of
course, in an equitable subrogation action, the insurer
steps into the shoes of the insured, and, consequently,
the insurer will not be able to assert any greater rights
than could the employer if it had brought the action.
See Fireman’s Fund Ins. Co. v. TD Banknorth Ins.
Agency, Inc., supra, 309 Conn. 455 (‘‘subrogation allows
a party who has paid a debt to step into the shoes of
another . . . to assume his or her legal rights against
a third party’’ [internal quotation marks omitted]). For
example, if an employer could not maintain an action
against a particular tortfeasor because that tortfeasor
was not a ‘‘third person’’ for purposes of § 31-293 (a);
see, e.g., Goodyear v. Discala, 269 Conn. 507, 516, 849
A.2d 791 (2004) (employer could not intervene in
injured employee’s legal malpractice action, which
claimed employee’s former attorneys failed to bring
personal injury claim against tortfeasor who caused
employee’s compensable injuries, in part because attor-
neys were not ‘‘third persons’’ as that term is used in
§ 31-293 [a]); the insurer also would be unable to bring
an action against such person because the doctrine of
equitable subrogation does not expand the employer’s
right when asserted by the insurer; it simply allows the
insurer to assert such right.8
The defendants also contend that allowing Pacific,
and similarly situated workers’ compensation insurers,
to bring equitable subrogation claims is contrary to the
expectations of the parties. The defendants claim that
the act, specifically § 31-293, clearly delineates the
rights, and therefore the expectations, of the parties
involved, namely, that employers and employees can
bring an action against third-party tortfeasors, that
insurers expect to have a lien on judgments received
by employers or employees, and that third-party tortfea-
sors expect any claim to be brought under § 31-293.
This court has in the past considered the expectations
of the parties in determining whether subrogation
should be allowed. See, e.g., Allstate Ins. Co. v.
Palumbo, 296 Conn. 253, 270–75, 994 A.2d 174 (2010);
Wasko v. Manella, supra, 269 Conn. 547–49; DiLullo v.
Joseph, 259 Conn. 847, 854–55, 792 A.2d 819 (2002).
Because the defendants’ motions to dismiss were
granted, the record does not reveal any facts regarding
the specific expectations of the particular parties
involved in the present case. Thus, our discussion of
the parties’ expectations will necessarily be in regard
to the general expectations of employers, employees,
workers’ compensation insurers, and third-party tort-
feasors under the act.
In Wasko, this court recognized a homeowners insur-
ance carrier’s right to be equitably subrogated to its
insured and to bring an action against a social guest
who negligently caused fire damage to the home. Wasko
v. Manella, supra, 269 Conn. 532. In so doing, we con-
cluded that allowing subrogation would not upset the
expectations of the parties. Id., 547. We noted ‘‘that
most social guests fully expect to be held liable for their
negligent conduct in another’s home . . . .’’ (Emphasis
in original.) Id. The homeowners in Wasko, we rea-
soned, could have brought a negligence claim directly
against the tortfeasor, and there was ‘‘no logical reason
for the [tortfeasor] to be unjustly enriched merely
because he burned down the home of a party that had
the foresight to purchase fire insurance, and subse-
quently chose to submit a claim to that insurance com-
pany rather than to proceed directly against him.’’ Id.,
549. Likewise, in the context of workers’ compensation,
the employee or employer may bring an action against
a third party responsible for an employee’s injuries, and
we see no reason why allowing the insurer to bring
such an action, rather than the employee or the
employer, would upset the parties’ expectations. See
id.; see also Allstate Ins. Co. v. Palumbo, supra, 296
Conn. 270 (denying homeowner insurer subrogation in
part because defendant, insured’s fiance´, would not
expect insured to bring action against him for his neg-
ligence).
In sum, we conclude that, under the common law,
an insurer that has indemnified the loss of an insured
under circumstances in which a third party is legally
liable for such loss, has the right to be subrogated to
the insured’s rights against the liable third party. More-
over, we have uncovered nothing in the act that abro-
gates such rights. Accordingly, we conclude that Pacific
can assert an equitable subrogation claim against the
defendants, and, therefore, that the trial court improp-
erly granted the defendants’ motions to dismiss. We
have not decided, however, that subrogation should be
ordered. Said differently, we express no opinion as to
whether Pacific has established its right to recover from
the defendants. ‘‘[O]rdering subrogation depends on the
equities and attending facts and circumstances of each
case. . . . The determination of what equity requires
in a particular case, the balancing of the equities, is a
matter for the discretion of the trial court.’’ (Citation
omitted; internal quotation marks omitted.) Allstate Ins.
Co. v. Palumbo, supra, 296 Conn. 260. ‘‘[A]n insurer
may not be allowed to recover from any party whose
equities are equal or superior to [its own equities].’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 282 (Zarella, J., dissenting). Thus, the present case
must be remanded to the trial court for consideration
of the competing equities of Pacific and the defendants.
In balancing the equities, the trial court should consider,
among other things, if subrogation is denied, whether
either Doughty or the defendants will be unjustly
enriched, the impact on our public policies of con-
taining the cost of the workers’ compensation system
and disfavoring economic waste, and the expectations
of the parties.
Moreover, because Pacific has stepped into the shoes
of its insured, Reliable, the defendants may assert any
defense they would be able to assert against Reliable
or Doughty. In addition, we note that Pacific, as subro-
gee of Reliable, is subject to the same statutory obliga-
tions as Reliable would have been if it had brought
this action. For example, Pacific must comply with the
notice and apportionment provisions of § 31-293 (a).
Finally, nothing contained herein relieves the insurer
of any obligation to provide a rate adjustment under
§ 31-293 (b).
The judgment in SC 19402 is reversed and the case
is remanded for further proceedings in accordance with
the preceding paragraphs; the appeal in SC 19403 is dis-
missed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justices Palmer, Eve-
leigh and Espinosa were not present when the case was argued before the
court, they have read the briefs and appendices, and listened to a recording
of the oral argument prior to participating in this decision.
1
On June 14, 2013, Doughty filed a motion to intervene and an intervening
complaint. The trial court granted the motion on July 3, 2013. Doughty’s
action is pending in the trial court.
2
Because we subsequently conclude in this opinion that Pacific can assert
an equitable subrogation claim, we need not reach Pacific’s statutory subro-
gation or substitution claims.
3
Each of the three defendants filed its own motion to dismiss and support-
ing memorandum. The arguments made by each defendant, however, are
largely identical and will be treated together.
4
At oral argument in the present case, defense counsel argued that Con-
necticut Mutual Life Ins. Co. stands for the proposition that under the
common law no insurer has a right to recover against a third-party tortfeasor
directly, and quoted the following language: ‘‘[T]here is no doubt of the right
of an insurer, who has paid a loss, to use the name of the insured, in order
to obtain redress from the author of the wrong; a right to be exercised for
the benefit of the party equitably entitled to its benefits, not to be enforced
by its possessor in his own name . . . .’’ Connecticut Mutual Life Ins. Co.
v. New York & New Haven Railroad Co., supra, 25 Conn. 277. In their brief,
the defendants also argue that an insurer may only bring its subrogation
action in the name of the insured. We view this not as an argument that
the doctrine does not exist in the context of workers’ compensation but,
instead, as an argument regarding how the doctrine is properly pleaded.
Insofar as the defendants argue that Connecticut Mutual Life Ins. Co.
provides that Pacific has no right to bring the present equitable subrogation
action in its own name but could have brought this action in the name of
its insured, Reliable, we are not persuaded. What might have been procedur-
ally true in 1856 is not necessarily true today. Practice Book § 9-23 provides
that ‘‘[a]n action may be brought in all cases in the name of the real party
in interest, but any claim or defense may be set up which would have been
available had the plaintiff sued in the name of the nominal party in interest.’’
In light of this rule, we conclude that Pacific was well within its rights to
institute this action in its own name. See 73 Am. Jur. 2d 681, Subrogation
§ 78 (2016) (‘‘A subrogation action may be brought by the subrogee in the
name of the subrogor. However, the subrogee may sue in his own name .
. . .’’ [Emphasis added; footnote omitted.]); see also, e.g., Allstate Ins. Co.
v. Palumbo, 296 Conn. 253, 255, 994 A.2d 174 (2010) (equitable subrogation
action brought in name of insurer, not insured); Alfred Chiulli & Sons, Inc.
v. Hanover Ins. Co., 294 Conn. 689, 690, 692, 987 A.2d 343 (2010) (insurer
brought counterclaim in its own name and prevailed against general contrac-
tor for reimbursement of payments insurer made to subcontractors pursuant
to payment bond, arguing insurer was equitably subrogated to rights of
subcontractors); Westchester Fire Ins. Co. v. Allstate Ins. Co., supra, 236
Conn. 365 (insurer asserted equitable subrogation in its own name); GEICO
v. Gonzalez, Superior Court, judicial district of Fairfield, Docket No. CV-
15-6049870-S (December 9, 2015) (insurer brought action against third-party
tortfeasor to recover damages it paid insured). We do not think that this
mere change in procedure, namely, in whose name an equitable subrogation
action is instituted, changes the nature of the right or action. Despite the
name in which the action is brought, the insurer is subrogated to the right
of its insured and it is prosecuting such right. Finally, we note that in the
present case, the caption reads ‘‘Pacific Insurance Company, [Limited], a
writing company of The Hartford Financial Services Group, Inc., as subrogee
of Stanford Dulaire D/B/A Connecticut Reliable Welding, LLC.’’ In our view,
there is no practical difference between bringing this action in Pacific’s
name, as subrogee of Reliable, and bringing it in Reliable’s name.
5
Public Act 97-58, § 4, provides: ‘‘No insurer providing underinsured
motorist coverage as required under title 38a of the general statutes shall
have any right of subrogation against the owner or operator of the underin-
sured motor vehicle for underinsured motorist benefits paid or payable by
the insurer.’’
6
General Statutes § 31-293 (a) provides in relevant part: ‘‘When any injury
for which compensation is payable under the provisions of [the act] has
been sustained under circumstances creating in a person other than an
employer who has complied with the requirements of [the act], 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; and any
employer or the custodian of the Second Injury Fund, having paid, or having
become obligated to pay, compensation under the provisions of this chapter
may bring an action against such person to recover any amount that he
has paid or has become obligated to pay as compensation to the injured
employee. If the employee, the employer or the custodian of the Second
Injury Fund brings an action against such person, he shall immediately
notify the others, in writing, by personal presentation or by registered or
certified mail, of the action and of the name of the court to which the writ
is returnable, and the others may join as parties plaintiff in the action within
thirty days after such notification . . . .’’ (Emphasis added.)
7
Originally, the act provided the employer with subrogation rights. See
Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 381. That is,
when an employer paid workers’ compensation benefits to an employee for
injuries that a third party was legally liable for, the employer would be
subrogated to the employee’s right to recover from the third party. Id.
Subsequently, the act was amended to replace the employer’s right of subro-
gation with a right either to intervene in an employee’s action against the
third party or to bring a direct action against the third party. Id., 381–82.
8
In a similar vein, the defendants argue that the act is a ‘‘comprehensive
scheme’’ and provides the exclusive remedies for both employers and
employees when a work-related injury occurs and a third party is liable for
such injury. The act expressly allows employers and employees to proceed
against a third-party tortfeasor, but does not provide a similar action for
insurers, and therefore, the defendants claim, we must assume that the
legislature ‘‘intentionally excluded a cause of action for the insurance com-
pany in the workers’ compensation context.’’ As we previously explained,
however, the employer’s right had to be expressly provided because it did
not exist at common law. The insurer’s subrogation right, on the other hand,
was already in existence. Because the legislature is presumed to be aware
of the common law when it enacts statutes, and because it did not expressly
abrogate subrogation in this context, we must assume it intended that work-
ers’ compensation insurers would be allowed to assert equitable subroga-
tion rights.
Insofar as the defendants claim that General Statutes § 52-225c, which
provides in relevant part that ‘‘[u]nless otherwise provided by law, no insurer
or any other person providing collateral source benefits . . . shall be enti-
tled to recover the amount of any such benefits from the defendant or any
other person or entity as a result of any claim or action for damages for
personal injury or wrongful death regardless of whether such claim or action
is resolved by settlement or judgment,’’ abrogates subrogation rights in the
context of workers’ compensation, we conclude that such argument was
not adequately briefed. The defendants have neither cited any authority to
support such an argument nor have they explained why the statute applies
in this context. See Electrical Contractors, Inc. v. Dept. of Education, 303
Conn. 402, 444, 35 A.3d 188 (2012) (‘‘It is well established that [w]e are not
obligated to consider issues that are not adequately briefed. . . . Whe[n]
an issue is merely mentioned, but not briefed beyond a bare assertion of
the claim, it is deemed to have been waived. . . . In addition, mere conclu-
sory assertions regarding a claim, with no mention of relevant authority
and minimal or no citations from the record, will not suffice.’’ [Internal
quotation marks omitted.]). Thus, we do not address this claim. We do note,
however, our doubt that § 52-225c applies to workers’ compensation carriers
because workers’ compensation benefits are not collateral source benefits.
See, e.g., Smith v. Otis Elevator Co., Docket No. CV-90-0275369-S, 1994 WL
76860, *1 (February 28, 1994) (‘‘payments required to be made under the
[act] do not fall within the express language used by the legislature to define
collateral sources’’ [internal quotation marks omitted]).