Lavette v. Stanley Black & Decker, Inc. ( 2022 )

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HENRY LAVETTE III v. STANLEY
BLACK & DECKER, INC.
(AC 44465)
Bright, C. J., and Alexander and Lavine, Js.
Syllabus
The plaintiff employee sought to recover damages from the defendant
employer for personal injuries he sustained while working for the defen-
dant. In his complaint, the plaintiff, whose employment duties included
painting, alleged, inter alia, that, although he was initially provided a
respirator by another employee to prevent excessive inhalation of toxic
chemicals from the paint he used, after about one month, D, the defen-
dant’s safety manager, informed the plaintiff that he was not authorized
to use the respirator in the workplace. The plaintiff further alleged that
the defendant had deliberately instructed him to continue to paint in
known dangerous conditions, the defendant was aware that his injuries
were substantially certain to result from its action, and it had engaged
in wilful and serious misconduct. The defendant filed a motion to strike
with prejudice on the ground that the plaintiff’s claim was barred by
the exclusivity provision (§ 31-284) of the Workers’ Compensation Act
(act) (§ 31-275 et seq.), which provides that the act is the exclusive
remedy for employees injured in most instances, because the plaintiff
failed to allege sufficient facts that D was the defendant’s alter ego such
that the defendant could be held liable for D’s tortious conduct, and,
alternatively, D’s actions did not constitute intentional misconduct. The
trial court granted the defendant’s motion to strike, concluding that the
plaintiff’s complaint did not state a legally sufficient cause of action
that fell within the intentional tort exception to the exclusivity provision
of the act. In its memorandum of decision, the court concluded that the
plaintiff did not allege the level of control required by the instrumentality
rule or the unity of ownership interest required by the identity rule to
disregard the defendant’s corporate structure, but merely attempted to
impose liability on the defendant for the alleged intentional acts of D,
as a supervisor, on the basis of her apparent authority to act on the
defendant’s behalf. The court granted the motion to strike with prejudice,
reasoning that the claim had been stricken multiple times and it was
clear that the plaintiff was unable to cure the legal insufficiencies in
the allegations. On the plaintiff’s appeal to this court, held that the trial
court properly granted the defendant’s motion to strike with prejudice,
the plaintiff having failed to plead that D was the defendant’s alter ego
such that D’s alleged intentional torts could be attributed to the defen-
dant to pierce the corporate veil and fall within the exception to the
exclusivity provision of the act: the plaintiff’s allegations simply estab-
lished D’s control was typical of any corporate safety manager and did
not rise to the level of alter ego status to disregard the defendant’s
corporate structure, the plaintiff’s allegations having failed to meet the
stringent alter ego test, which requires that the corporation have no
separate existence from the alter ego who controls and dominates the
corporation’s business affairs, as the plaintiff’s allegation that D created
a policy regarding the use of respirators did not establish the requisite
level of control over the defendant; moreover, this court declined to
review the plaintiff’s argument that it should reconsider its jurisprudence
regarding the alter ego exception to the act’s exclusivity provision with
respect to larger corporations, as the plaintiff failed to raise this argu-
ment before the trial court and raised it for the first time to this court
in his reply brief; furthermore, although our Supreme Court in Patel v.
Flexo Converters, U.S.A., Inc. (309 Conn. 52), reasoned that a plaintiff
alleging an intentional tort directly committed or authorized by the
employer was not required to prove that the actor was the employer’s
alter ego, this court declined to consider the applicability of that excep-
tion to the exclusivity provision of the act, as the plaintiff did not
allege or argue that an intentional tort had been directly committed or
authorized by the defendant.
Argued January 10–officially released June 28, 2022
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of the defendant’s
alleged wilful misconduct, and for other relief, brought
to the Superior Court in the judicial district of Hartford,
where the court, Noble, J., granted the defendant’s
motion to strike with prejudice, and the plaintiff
appealed to this court; thereafter, the court, Noble, J.,
granted the plaintiff’s motion for judgment and ren-
dered judgment for the defendant, and the plaintiff filed
an amended appeal. Affirmed.
James F. Sullivan, for the appellant (plaintiff).
Nicholas N. Ouellette, with whom, on the brief, was
Samuel N. Rosengren, for the appellee (defendant).
Opinion
ALEXANDER, J. The plaintiff, Henry Lavette III, a
former employee of the defendant, Stanley Black &
Decker, Inc., appeals from the judgment of the trial
court, rendered in favor of the defendant following the
court’s decision to strike count one of his fourth
amended complaint with prejudice. On appeal, the
plaintiff claims that the court improperly concluded
that he had failed to allege sufficient facts to establish
that his claim came within the intentional tort exception
to the exclusivity provision of the Workers’ Compensa-
tion Act (act), General Statutes § 31-275 et seq. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts, as alleged in the plaintiff’s fourth
amended complaint and construed in the manner most
favorable to sustaining its legal sufficiency,1 and proce-
dural history are relevant to our discussion. On or about
September 2, 2014, the defendant hired the plaintiff as
a ‘‘store attendant’’ and his essential employment duties
included painting by brush and by spray. Initially,
another employee provided the plaintiff with a respira-
tor to prevent excessive inhalation of toxic chemicals
from the paint. After approximately one month, how-
ever, Kim Derin, the defendant’s safety manager,
informed the plaintiff that he was not authorized to
use the respirator in the workplace. The plaintiff then
developed symptoms from his exposure to the paint,
such as pain, nausea, diarrhea, and headaches. His
symptoms worsened over time.
On or about July 9, 2015, the plaintiff informed Derin
that ‘‘he was continuously getting headaches, feeling
nauseous and experiencing shortness of breath from
painting at work . . . .’’ Derin never responded to the
plaintiff regarding his health issues. In January, 2016,
the plaintiff reported that he was feeling ‘‘violently ill’’
but was reluctant to file a union grievance concerning
the hazardous conditions due to a fear of being ‘‘tar-
geted’’ by other employees and supervisors. The use of
a different brand of paint did not relieve or ameliorate
the plaintiff’s symptoms.
On or about February 28, 2016, the plaintiff ‘‘became
extremely ill including excessive vomiting and diar-
rhea.’’ His symptoms did not improve and a few days
later he experienced dizziness and cloudy vision. He
was hospitalized overnight and returned to work a few
days later. The plaintiff worked only one day between
February 28, 2016, and March 17, 2016. The plaintiff
filed a complaint with the federal Occupational Safety
and Health Administration (OSHA),2 which led to an
investigation of the defendant and fines exceeding
$35,000. The defendant terminated the plaintiff’s
employment on or about January 20, 2017.
The plaintiff commenced this action and, in his opera-
tive fourth amended complaint, alleged that the defen-
dant ‘‘deliberately instructed the plaintiff to continue
to paint in what [was known] to be dangerous condi-
tions.’’ He further claimed that the defendant was aware
that his injuries were substantially certain to occur and
engaged in wilful and serious misconduct. As a result
of this misconduct, the plaintiff purportedly suffered
‘‘injuries including nausea, long-term headaches, sharp
pain and cramps in his legs, excessive shortness of
breath, diarrhea, and overall pain and fatigue in his
body, [as well as] emotional distress and concerns for
his overall well-being.’’3
On April 20, 2020, the defendant moved to strike
count one of the plaintiff’s fourth amended complaint
with prejudice. In the attached memorandum of law,
the defendant argued that the plaintiff had failed to
allege sufficient facts that Derin was the ‘‘alter ego’’ of
the defendant and, in the alternative, that her actions
did not constitute intentional misconduct.4 It further
argued that without a sufficiently pleaded alter ego
theory, the plaintiff’s action was legally insufficient due
to the exclusivity provision of the act,5 and, therefore,
the court should grant its motion to strike with preju-
dice. The plaintiff filed his objection to the defendant’s
motion to strike on May 26, 2020. The court conducted
a remote hearing on September 28, 2020.
On December 8, 2020, the court issued a memoran-
dum of decision granting the defendant’s motion to
strike count one of the plaintiff’s fourth amended com-
plaint with prejudice. At the outset of its analysis, the
court summarized the arguments of the parties as fol-
lows: ‘‘The first issue to be addressed is whether the
plaintiff alleges sufficient facts in the [fourth amended]
complaint to subject the claim in count one to the inten-
tional tort exception [to the exclusivity provision of the
act found in] § 31-284 (a). The defendant argues that
the plaintiff fails to allege sufficient facts to establish
[Derin’s] . . . alter ego status, [and] thus fails to bring
the claim in count one within the ambit of the inten-
tional tort exception. The plaintiff disagrees by pointing
to the allegation that Derin had complete and final con-
trol over the removal of the plaintiff’s respirator, [and]
therefore, is the alter ego of the defendant with respect
to this specific transaction, satisfying the instrumental-
ity rule for piercing the corporate veil.’’
Citing to Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d
1263 (1979), the court first noted the limited nature of
the alter ego intentional tort exception to the exclusivity
provision of the act, which provides that, if an assailant
employee is of such a rank in the corporation so as to
be considered its alter ego, then the corporation may
be assigned responsibility for the assailant employee’s
conduct. Next, the court, citing to Patel v. Flexo Con-
verters U.S.A., Inc., 309 Conn. 52, 58, 68 A.3d 1162(2013), observed that this stringent exception does not
impose liability on the corporation for the intentional
acts of supervisors based on their apparent authority
to act on behalf of their employer.
The court then summarized the relevant allegations
in the fourth amended complaint. ‘‘[T]he plaintiff alleges
that Derin had the authority to make and control policy
for the defendant regarding safety procedures, and had
the ‘complete and final authority’ with respect to the
removal of the plaintiff’s respirator. . . . The plaintiff
further alleges that when Derin exercised her authority
to remove the [plaintiff’s respirator], she ‘bound the
defendant to her decision so that, at the time, the defen-
dant had no separate mind, will or existence of its
own.’ ’’ (Citations omitted.) With respect to the first
allegation concerning Derin, the court concluded that
this description established nothing more than the
duties of any corporate safety manager. As to the latter
allegation, the court determined that it lacked legal
significance because a motion to strike does not admit
legal conclusions or the accuracy or truth of the opin-
ions stated. ‘‘The plaintiff alleges no specific fact[s] to
substantiate his proposition that the defendant . . .
ha[s] no separate mind, will or existence of its own
with respect to the removal of the respirator. . . . Fur-
thermore . . . it is not alleged . . . that Derin . . .
has any ownership interest in the defendant or that
the defendant does not properly maintain corporate
formalities. . . . Overall, the plaintiff alleges neither
the level of control required by the instrumentality rule
nor the unity of ownership interest required by the
identity rule, but merely attempts to impose liability on
the employer for the intentional acts of supervisors on
the basis of apparent authority to act on the employer’s
behalf.’’ (Citations omitted; internal quotation marks
omitted.) The court subsequently granted the motion
to strike this count with prejudice because it had been
stricken multiple times and ‘‘it is clear that the plaintiff
cannot cure the legal insufficiencies in the allegations.’’
Thereafter, the plaintiff filed a motion for judgment,
which the court granted on January 8, 2021.6 This appeal
followed. Additional facts will be set forth as needed.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motion to strike count one
of the fourth amended complaint with prejudice. Specif-
ically, he argues that the facts pleaded ‘‘clearly [allege
that] . . . Derin had the complete and final authority
regarding whether the plaintiff could use a respirator
while painting’’ and that these allegations were suffi-
cient to satisfy the alter ego exception to the exclusivity
provision of the act. The plaintiff further contends that
the court erred in concluding that the allegations regard-
ing Derin constituted a legal conclusion. We are not
persuaded.
We begin our analysis by setting forth our standard
of review and the relevant legal principles. ‘‘The stan-
dard of review in an appeal challenging a trial court’s
granting of a motion to strike is well established. A
motion to strike challenges the legal sufficiency of a
pleading, and, consequently, requires no factual find-
ings by the trial court. As a result, our review of the
court’s ruling is plenary. . . . We take the facts to be
those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.’’
(Internal quotation marks omitted.) Sieranski v. TJC
Esq, A Professional Services Corp., 203 Conn. App. 75,
81, 247 A.3d 201 (2021); see also Karagozian v. USV
Optical, Inc., 335 Conn. 426, 433–34, 238 A.3d 716(2020). Additionally, we note that ‘‘[w]hat is necessarily
implied [in an allegation] need not be expressly alleged.
. . . It is fundamental that in determining the suffi-
ciency of a complaint challenged by a [defendant’s]
motion to strike, all well-pleaded facts and those facts
necessarily implied from the allegations are taken as
admitted. . . . Indeed, pleadings must be construed
broadly and realistically, rather than narrowly and tech-
nically.’’ (Internal quotation marks omitted.) Piccolo v.
American Auto Sales, LLC, 195 Conn. App. 486, 490,
225 A.3d 961 (2020).
Next, we set forth the relevant principles regarding
our workers’ compensation jurisprudence. ‘‘The pur-
pose of the [act] is to compensate the worker for injuries
arising out of and in the course of employment, without
regard to fault, by imposing a form of strict liability on
the employer . . . . [The act] compromise[s] an
employee’s right to a [common-law] tort action for
[work-related] injuries in return for relatively quick and
certain compensation.’’ (Internal quotation marks omit-
ted.) Dominguez v. New York Sports Club, 198 Conn.
App. 854, 859, 234 A.3d 1017 (2020); see also Jones v.
Connecticut Children’s Medical Center Faculty Prac-
tice Plan, 131 Conn. App. 415, 422–23, 28 A.3d 347(2011).
General Statutes § 31-284 (a)7 sets forth the relevant
aspects of the exclusivity provision of the act, and pro-
vides that workers’ compensation payments are the
exclusive source of remedy against an injured employ-
ee’s employer in most instances. Mariano v. Hartland
Building & Restoration Co., 168 Conn. App. 768, 778,
148 A.3d 229 (2016); see also Motzer v. Haberli, 300
Conn. 733, 743–44, 15 A.3d 1084 (2011). Specifically,
our Supreme Court has stated that ‘‘where a worker’s
personal injury is covered by the act, statutory compen-
sation is the sole remedy and recovery in common-law
tort against the employer is barred.’’ Jett v. Dunlap,
supra, 179 Conn. 217; see also Driscoll v. General Nutri-
tion Corp., 252 Conn. 215, 221, 752 A.2d 1069 (2000).
There is, however, an exception to the act’s exclusiv-
ity. If a plaintiff can demonstrate that his injury was
the result of an intentional tort8 that was committed by
his employer, then the corporation is subject to com-
mon-law tort liability. See Suarez v. Dickmont Plastics
Corp., 242 Conn. 255, 274, 698 A.2d 838 (1997); Perille
v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529,
532–33, 494 A.2d 555 (1985); Jett v. Dunlap, supra, 179
Conn. 217–18.
Our Supreme Court has recognized two different
ways for an employee to allege and prove an intentional
tort. In Jett v. Dunlap, supra, 179 Conn. 218, our
Supreme Court first explained that an employer cannot
rely upon the exclusivity of the act if it intentionally
directed or authorized its employee to strike another
employee. Next, after noting a distinction between an
assault directly committed or authorized by an
employer and an unauthorized assault committed by
an employee, the court turned to the question of
whether that employee was the alter ego of the corpora-
tion such that the employer should be held liable for
the employee’s tortious conduct. Id., 218–19. The court
in Jett reasoned that if the assailant is of such a rank
in the corporation so as to be deemed its alter ego,
under standards governing disregard of the corporate
entity, it was appropriate for the corporation to bear
reasonability for that actor’s unauthorized conduct. Id.,
219. Jett did not, however, extend corporate liability
for the conduct of an assailant to mere supervisors or
foremen. Id. In summary, the court in Jett concluded:
‘‘If the assailant can be identified as the alter ego of
the corporation, or the corporation has directed or
authorized the assault, then the corporation may be
liable in common-law tort; if the assailant is only
another employee who cannot be so identified, then
the strict liability remedies provided by the [act] are
exclusive and cannot be supplemented with common-
law damages.’’ Id.
Our Supreme Court subsequently revisited this
exception to the act’s exclusivity provision in Suarez
v. Dickmont Plastics Corp., supra, 242 Conn. 255. In
that case, the trial court had instructed the jury that
the intentional actions of an employee could be attrib-
uted to the corporate defendant if that employee had
apparent authority to act on the corporation’s behalf
or was its alter ego. Id., 272. On appeal, our Supreme
Court reviewed and applied the analysis from Jett v.
Dunlap, supra, 197 Conn. 218–19, and concluded that
the assailant must be of such a rank in the corporation
to be deemed its alter ego under the standard governing
the disregard of the corporate entity. Suarez v. Dick-
mont Plastics Corp., supra, 273–75. It further noted that
to overcome the act’s exclusivity provision, both the
actions producing the injury and the resulting actions
must have been intentional or substantially certain to
have occurred. Id., 280.
In the present case, the plaintiff consistently has
relied on its allegations that Derin acted as the alter
ego of the defendant and committed an intentional tort.
Consequently, we turn to our Supreme Court’s most
recent discussion of that specific exception to the act
in Patel v. Flexo Converters, U.S.A., Inc., supra, 309
Conn. 52. In Patel, the employee challenged the sum-
mary judgment rendered in favor of the employer with
respect to his action to recover damages for personal
injuries that resulted from the alleged intentional mis-
conduct by a fellow employee. Id., 53–54. The disposi-
tive issue in Patel was whether the trial court properly
concluded that no genuine issue of material fact existed
as to whether the fellow employee’s position as a night
supervisor made him the defendant’s alter ego. Id., 55–
57.
Our Supreme Court, citing to Jett v. Dunlap, supra,179 Conn. App. 219, iterated the narrow exception to
the exclusivity provision of the act for intentional torts
committed by the alter ego of a corporation. Patel v.
Flexo Converters, U.S.A., Inc., supra, 309 Conn. 57.
It emphasized that this exception does not apply to
supervisory employees but only an alter ego of the
corporation. Id., 57–58. Our Supreme Court explained:
‘‘The alter ego test is stringent. The supervisory
employee alleged to have intentionally injured the plain-
tiff must be the employer’s alter ego under the standards
governing disregard of the corporate entity . . . a test
corresponding to the requirements for piercing the cor-
porate veil. The concept of piercing the corporate veil
is equitable in nature. . . . No hard and fast rule . . .
as to the conditions under which the entity may be
disregarded can be stated as they vary according to the
circumstances of each case. . . . The standard
requires that the corporation, functionally speaking,
have no separate existence from the alter ego who con-
trols and dominates the corporation’s affairs. The alter
ego test is therefore incompatible with imposing liabil-
ity on the employer for the intentional acts of supervi-
sors on the basis of apparent authority to act on the
employer’s behalf. . . .
‘‘The alter ego test is functional, and a supervisory
employee’s title is not dispositive of the ultimate ques-
tion of whether the employee meets the standards gov-
erning disregard of the corporate entity . . . . In the
context of a small family owned corporation, for exam-
ple, a supervisor could sufficiently dominate and con-
trol the corporation so as to justify liability under the
alter ego theory.’’ (Citations omitted; emphasis added;
footnotes omitted; internal quotation marks omitted.)
Id., 58–60; see also Melanson v. West Hartford, 61 Conn.
App. 683, 690–91, 767 A.2d 764, cert. denied, 256 Conn.
904, 772 A.2d 995 (2001). The court also observed that,
as noted in Jett v. Dunlap, supra, 179 Conn. 218, if a
plaintiff alleged an intentional tort directly committed
or authorized by the employer, he or she would not be
required to prove that the actor was the employer’s
alter ego. Patel v. Flexco Converters U.S.A., Inc., supra,
58 n.6.
Our Supreme Court then described the two methods
for determining whether a defendant’s corporate struc-
ture has been disregarded: the instrumentality rule and
the identity rule. Id., 59 n.7. ‘‘The instrumentality rule
requires, in any case but an express agency, proof of
three elements: (1) Control, not mere majority or com-
plete stock control, but complete domination, not only
of finances but of policy and business practice in
respect to the transaction attacked so that the corporate
entity as to this transaction had at the time no separate
mind, will or existence of its own; (2) that such control
must have been used by the defendant to commit fraud
or wrong, to perpetrate the violation of a statutory or
other positive legal duty, or a dishonest or unjust act
in contravention of [the] plaintiff’s legal rights; and (3)
that the aforesaid control and breach of duty must prox-
imately cause the injury or unjust loss complained of.
. . . The identity rule has been stated as follows: If
[the] plaintiff can show that there was such a unity of
interest and ownership that the independence of the
corporations had in effect ceased or had never begun,
an adherence to the fiction of separate identity would
serve only to defeat justice and equity by permitting
the economic entity to escape liability arising out of an
operation conducted by one corporation for the benefit
of the whole enterprise.’’ (Internal quotation marks
omitted.) Id.; see also Hersey v. Lonrho, Inc., 73 Conn.
App. 78, 87, 807 A.2d 1009 (2002).
With this background in mind, we consider the exten-
sive procedural history in this case regarding the plain-
tiff’s intentional tort claim to determine if the plaintiff
pleaded sufficient facts to come within the intentional
tort committed by an alter ego exception to the exclusiv-
ity provision of the act. The plaintiff commenced this
action on March 20, 2017. In count one of his complaint,
the plaintiff alleged that the defendant deliberately had
instructed him to continue to paint in what it knew to
be dangerous conditions. He further claimed that the
defendant was aware that his ‘‘injuries were substan-
tially certain to flow from [its] actions’’ and had
‘‘engaged in wilful and serious misconduct.’’ As a result
of this misconduct, the plaintiff purportedly suffered
‘‘injuries including nausea, long-term headaches, sharp
pain and cramps in his legs, excessive shortness of
breath, diarrhea, and overall pain and fatigue in his
body.’’9
On November 5, 2018, the defendant moved to strike
counts one and three of the amended complaint.10 With
respect to count one of the amended complaint, the
defendant argued that the plaintiff failed to allege that
the employees controlled and dominated the corporate
entity so as to constitute its alter ego. On November
30, 2018, the plaintiff filed a revised amended com-
plaint.11 In anticipation of the filing of another amended
complaint, the court, on January 2, 2019, declined to
rule on the defendant’s motion to strike count one of
the amended complaint, and granted the defendant’s
motion to strike with respect to count three.
On February 7, 2019, the plaintiff filed a second
revised complaint. On March 21, 2019, the defendant
filed a motion to strike count one of the plaintiff’s sec-
ond revised complaint. In its accompanying memoran-
dum of law, the defendant argued, inter alia, that the
plaintiff had failed to allege sufficient facts that the
employees identified in the second revised complaint
controlled and dominated the defendant’s business
affairs so as to be deemed its alter ego. On April 18,
2019, the plaintiff filed his memorandum of law in oppo-
sition to the defendant’s motion to strike.12 On Septem-
ber 17, 2019, the court issued a memorandum of deci-
sion granting the defendant’s motion to strike. The court
noted that the plaintiff had failed to ‘‘cite any facts to
buttress the claim that Derin . . . [was] the alter ego’’
of the defendant or recite the elements of the tests
used to determine whether the defendant’s corporate
structure had been disregarded.
On October 2, 2019, the plaintiff filed his third
amended complaint. In that pleading, the plaintiff
alleged that Derin, as the defendant’s safety manager,
held ‘‘a title of such rank as it is deemed as an alter
ego of the defendant, and . . . Derin is so situated in
the corporate structure as to bind the corporation.’’
The defendant responded thirteen days later by filing
a motion for judgment pursuant to Practice Book § 10-
44,13 or, in the alternative, to strike count one of the
third amended complaint. The defendant argued that
the plaintiff had not cured the pleading deficiencies in
the second revised complaint that had been stricken
by the court. In its accompanying memorandum of law,
the defendant argued that the plaintiff still had failed
to allege sufficient facts to satisfy either the instrumen-
tality rule or the identity rule despite the inclusion of
the job responsibilities of Derin and the assertion that
her position was of such a rank so as to bind the defen-
dant and to deem her as its alter ego.
The plaintiff filed his objection to the motion for
judgment and the motion to strike on October 31, 2019.
Therein, he maintained that sufficient facts had been
pleaded to satisfy the instrumentality rule and, there-
fore, Derin was the alter ego of the defendant. He further
argued that this pleading was sufficient to establish that
the defendant, through its alter ego, intentionally acted
in a way to cause the plaintiff’s injuries and that those
injuries were substantially certain to result from the
defendant’s conduct.
On March 5, 2020, the court issued an order indicating
that it was granting the defendant’s October 15, 2019
motion, which it treated as a motion to strike. In
recounting the procedural history, the court com-
mented that a prior pleading had been stricken because
the plaintiff’s bald assertion regarding Derin as an alter
ego of the defendant was insufficient to bring his claim
within the exception to the act’s exclusivity provision.
With respect to the third amended complaint, which
added a description of employment duties for Derin’s
position, the court agreed with the defendant that
despite these additions, the plaintiff had failed to set
forth sufficient allegations to advance a claim for alter
ego status pursuant to either the instrumentality rule
or the identity rule. The court issued an order stating:
‘‘The new allegations fail to allege facts sufficient to
implicate alter ego status, and therefore the motion to
strike the first count is granted.’’
On April 3, 2020, the plaintiff filed his fourth amended
complaint. In that pleading, the plaintiff alleged the
following: ‘‘Derin . . . had the complete and final
authority regarding whether the plaintiff could use a
respirator while painting. . . . Derin exercised her
authority and judgment when she took the respirator
from the plaintiff. . . . In so exercising her authority
and judgment . . . Derin bound the defendant to her
decision so that, at the time, the defendant had no
separate mind, will or existence of its own. . . . Derin
was the safety manager of the [defendant] . . . . This
is a title of such rank as it is deemed as an alter ego
of the defendant, and . . . Derin is so situated in the
corporate structure as to bind the corporation. . . .
Derin, as the defendant’s safey manager, had the author-
ity to make policy for the defendant regarding safety
procedures. . . . Derin had the authority to control
policy for the defendant regarding safety procedures.’’
The defendant moved to strike the fourth amended
complaint with prejudice. The defendant again con-
tended that the pleading was legally insufficient to bring
this claim within the alter ego exception to the exclusiv-
ity provision of the act. The court agreed with the defen-
dant and granted the motion to strike with prejudice.
We conclude that the trial court properly determined
that the plaintiff’s allegations established nothing more
than that Derin exercised the control typical of any
corporate safety manager and did not rise to the level of
alter ego status. The plaintiff failed to allege ‘‘complete
domination’’ over the defendant, as required by the
instrumentality rule. See Patel v. Flexo Converters,
U.S.A., Inc., supra, 309 Conn. 59 n.7. Additionally, the
allegations in the fourth amended complaint failed to
establish the type of unity of interest and ownership
between Derin and the defendant to satisfy the identity
test. See id. We note that the ‘‘alter ego test is stringent’’
and that the ‘‘standard requires that the corporation,
functionally speaking, have no separate existence from
the alter ego who controls and dominates the corpora-
tion’s affairs.’’ Id., 58–59. The allegation that Derin cre-
ated a policy regarding the use of respirators did not
establish the level of control over the defendant neces-
sary to pierce the corporate veil and come within the
alter ego exception to the act’s exclusivity provision,
which was announced in Jett v. Dunlap, supra, 179
Conn. 219, and further explained in Patel.
We also agree with the trial court that the plaintiff’s
bald assertion that the defendant lacked a separate
mind, will or existence from Derin constituted a legal
conclusion, and, therefore, lacked legal significance.
‘‘A motion to strike does not admit legal conclusions.’’
(Internal quotation marks omitted.) Hirsch v. Woermer,
184 Conn. App. 583, 588, 195 A.3d 1182, cert. denied,
330 Conn. 938, 195 A.3d 384 (2018); Cadle Co. v. D’Adda-
rio, 131 Conn. App. 223, 230, 26 A.3d 682 (2011); see
also Heyward v. Judicial Dept., 178 Conn. App. 757,
762, 176 A.3d 1234 (2017) (motion to strike properly
granted if complaint alleges mere conclusions of law
unsupported by facts alleged). For these reasons, we
conclude that the trial court properly granted the defen-
dant’s motion to strike the plaintiff’s fourth amended
complaint with prejudice.
In an attempt to avoid this result, the plaintiff has
raised two arguments which we conclude are not prop-
erly before this court. First, in his reply brief and at
oral argument, the plaintiff claimed that we should
reconsider our jurisprudence regarding the alter ego
exception to the workers’ compensation exclusivity
provision, particularly with respect to larger corpora-
tions. We decline to consider this argument because it
was not raised before the trial court; see Taylor v.
Pollner, 210 Conn. App. 340, 345, 270 A.3d 213 (2022);
and was raised for the first time to this court in the
plaintiff’s reply brief. See Ostapowicz v. Wisniewski,
210 Conn. App. 401, 413–14 n.9, 270 A.3d 145 (2022)
(declining to review claim raised for first time in reply
brief). Additionally, as an intermediate appellate court,
we are bound to follow the controlling precedent from
our Supreme Court. Onofrio v. Mineri, 207 Conn. App.
630, 645 n.4, 263 A.3d 857 (2021) (noting that this court
is unable to modify Supreme Court precedent). For
these reasons, we decline to consider the plaintiff’s
argument that we should reconsider our law pertaining
to the alter ego exception.
Second, at oral argument before this court, a discus-
sion regarding certain language from Patel v. Flexo Con-
verters, U.S.A., Inc., supra, 309 Conn. 58 n.6, occurred.
This footnote in Patel describes an additional way for
a plaintiff to avoid the exclusive nature of the act. Spe-
cifically, it states: ‘‘We note that a plaintiff alleging an
intentional tort directly committed or authorized by
the employer need not prove that the actor was the
employer’s alter ego. Jett v. Dunlap, supra, 179 Conn.
218.’’ (Internal quotation marks omitted.) Patel v. Flexo
Converters, U.S.A., Inc., supra, 58 n.6. During argument,
the plaintiff’s counsel appeared to take the position
that this alternative means to bypass the exclusivity
provision of the act provided an additional pathway to
reverse the granting of the motion to strike the fourth
amended complaint with prejudice.
After our careful review of the record, as demon-
strated by the extensive review of the plaintiff’s plead-
ings from his initial complaint to the fourth amended
complaint that was stricken with prejudice, we con-
clude that the plaintiff did not allege or argue that an
intentional tort had been directly committed or author-
ized by the defendant. Specifically, we note that in its
September 17, 2019 memorandum of decision granting
the defendant’s motion to strike the first count of the
plaintiff’s revised complaint, the court expressly stated
that ‘‘[t]he alter ego status of Derin . . . was the only
basis on which the plaintiff asserted the intentional
tort exception to the workers’ compensation exclusiv-
ity.’’ (Emphasis added.) The allegations set forth in the
plaintiff’s third and fourth amended complaints did not
advance a claim of an intentional tort directly commit-
ted or authorized by the defendant. ‘‘[A] party cannot
present a case to the trial court on one theory and then
seek appellate relief on a different one . . . . For this
court to . . . consider [a] claim on the basis of a spe-
cific legal ground not raised during trial would amount
to trial by ambuscade, unfair both to the [court] and
to the opposing party.’’ (Citation omitted; internal quo-
tation marks omitted.) Avoletta v. Torrington, 133
Conn. App. 215, 223 n.8, 34 A.3d 445 (2012).
Furthermore, the plaintiff failed to adequately brief
the issue of whether an intentional tort had been
directly committed or authorized by the defendant. ‘‘We
repeatedly have stated that [w]e are not required to
review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs.’’ (Internal quotation marks
omitted.) Robb v. Connecticut Board of Veterinary
Medicine, 204 Conn. App. 595, 611, 254 A.3d 915, cert.
denied, 338 Conn. 911, 259 A.3d 654 (2021). For these
reasons, we decline to consider the applicability of the
exception to the exclusivity provision of the act set
forth in Patel v. Flexco Converters U.S.A., Inc., supra,
309 Conn. 58 n.6.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See, e.g., Doe v. Cochran, 332 Conn. 325, 328, 210 A.3d 469 (2019);
Sullivan v. Lake Compounce Theme Park, 277 Conn. 113, 117, 889 A.2d
810 (2006).
2
‘‘OSHA is designed to impose duties upon employers to ensure worksite
safety for the benefit of their own employees as well as any other employees
working on or at any worksite that is under the employer’s control.’’ Bouch-
ard v. Deep River, 155 Conn. App. 490, 497–98, 110 A.3d 484 (2015); see
also 29 U.S.C. § 651 et seq. (2018).
3
Count two of the plaintiff’s fourth amended complaint set forth a claim
of unlawful retaliation. General Statutes § 31-51q provides in relevant part:
‘‘Any employer . . . who subjects any employee to discipline or discharge
on account of the exercise by such employee of rights guaranteed by the
first amendment to the United States Constitution or section 3, 4 or 14 of
article first of the Constitution of the state, provided such activity does
not substantially or materially interfere with the employee’s bona fide job
performance or the working relationship between the employee and the
employer, shall be liable to such employee for damages caused by such
discipline or discharge, including punitive damages, and for reasonable
attorney’s fees as part of the costs of any such action for damages.’’ The
trial court presumed that the plaintiff’s multiple references in the fourth
amended complaint to General Statutes § 31-51g constituted a typographi-
cal error.
The defendant objected to count two of the fourth amended complaint
on the grounds that this cause of action was raised for the first time and
was ‘‘exceedingly and unjustifiably untimely and . . . would be barred by
the statute of limitations.’’ The court sustained the defendant’s objection to
the plaintiff’s request for leave to add count two to the fourth amended
complaint, and the plaintiff has not challenged that ruling in this appeal.
4
In the proceedings before the trial court, the plaintiff also alleged that
another employee, Kristen Sabatino, the defendant’s human resources direc-
tor, acted as its alter ego because she had the authority to ‘‘make policy
and implement strategies for the defendant regarding training, development,
safety and health.’’ The court concluded that the plaintiff’s allegations against
Sabatino were legally insufficient, and the plaintiff has not challenged this
aspect of the court’s ruling on appeal. Accordingly, we limit our discussion
to the plaintiff’s allegations regarding Derin.
5
See General Statutes § 31-284; Mello v. Big Y Foods, Inc., 265 Conn. 21,
25–26, 826 A.2d 1117 (2003).
6
As a general rule, ‘‘[a]fter a court has granted a motion to strike, the
plaintiff may either amend his pleading [pursuant to Practice Book § 10-44]
or, on the rendering of judgment, file an appeal. . . . The choices are mutu-
ally exclusive [as] [t]he filing of an amended pleading operates as a waiver
of the right to claim that there was error in the sustaining of the [motion
to strike] the original pleading.’’ (Citation omitted; internal quotation marks
omitted.) St. Denis v. de Toledo, 90 Conn. App. 690, 693–94, 879 A.2d 503, cert.
denied, 276 Conn. 907, 884 A.2d 1028 (2005); see also Sempey v. Stamford
Hospital, 194 Conn. App. 505, 511–12, 221 A.3d 839 (2019). In the present
case, however, the plaintiff was not permitted to amend his fourth amended
complaint because the court had granted the defendant’s motion to strike
with prejudice. See, e.g., DeCorso v. Calderaro, 118 Conn. App. 617, 624,
985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010).
7
General Statutes § 31-284 (a) provides: ‘‘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 or on account
of death resulting from personal injury so sustained, but an employer shall
secure compensation for his employees as provided under this chapter,
except that compensation shall not be paid when the personal injury has
been caused by the wilful and serious misconduct of the injured employee
or by his intoxication. All rights and claims between an employer who
complies with the requirements of subsection (b) of this section and
employees, or any representatives or dependents of such employees, arising
out of personal injury or death sustained in the course of employment are
abolished other than rights and claims given by this chapter, provided
nothing in this section shall prohibit any employee from securing, by agree-
ment with his employer, additional compensation from his employer for
the injury or from enforcing any agreement for additional compensation.’’
(Emphasis added.)
8
‘‘[I]n Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507(1994) . . . and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698
A.2d 838 (1997) . . . the court expanded the intentional tort exception to
the exclusivity provision to include circumstances in which either . . . the
employer actually intended to injure the plaintiff (actual intent standard)
or . . . the employer intentionally created a dangerous condition that made
the plaintiff’s injuries substantially certain to occur (substantial certainty
standard).’’ (Internal quotation marks omitted.) Binkowski v. Board of Edu-
cation, 180 Conn. App. 580, 586, 184 A.3d 279 (2018); see also Lucenti v.
Laviero, 327 Conn. 764, 778–79, 176 A.3d 1 (2018); Stebbins v. Doncasters,
Inc., 263 Conn. 231, 233, 819 A.2d 287 (2003).
9
The plaintiff’s complaint also included a second count claiming wrongful
discharge in violation of § 31-51m in which he alleged that he was terminated
for exercising his first amendment rights when he reported the defendant
to OSHA. On October 4, 2018, the plaintiff filed a request to amend the
complaint to add a second wrongful discharge claim. Specifically, he sought
to include an additional count alleging that he had been terminated ‘‘in
retaliation for raising issues that derive from the law that support important
public polices about health and safety in the workplace.’’ The court overruled
the defendant’s objection and permitted the plaintiff to amend his complaint.
10
See footnote 9 of this opinion.
11
The statement of facts section and count one of the revised amended
complaint essentially mirrored those of the amended complaint.
12
While the defendant’s motion to strike the second revised complaint
was pending, the plaintiff filed a request to file a third revised complaint
on June 10, 2019. The proposed third revised complaint included, inter alia,
language regarding Derin and her employment role for the defendant. The
defendant objected to the plaintiff’s request and, on July 1, 2019, the court
sustained the defendant’s objection.
13
Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days
after the granting of any motion to strike, the party whose pleading has
been stricken may file a new pleading; provided that in those instances
where an entire complaint, counterclaim or cross complaint, or any count
in a complaint, counterclaim or cross complaint has been stricken, and the
party whose pleading or a count thereof has been so stricken fails to file a
new pleading within that fifteen day period, the judicial authority may,
upon motion, enter judgment against said party on said stricken complaint,
counterclaim or cross complaint, or count thereof. . . .’’