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STATE OF CONNECTICUT
IN RE: BRIDGEPORT ASBESTOS SUPERIOR COURT JUDICIAL
LITIGATION DISTRICT OF FAIRFIELD AT
BRIDGEPORT
DOCKET NO: FBT-CV22-6113982-S
__________________________________________
THOMAS TOMKO and DEBORAH TOMKO )
)
Plaintiffs, )
)
VS. )
)
ROGERS CORPORATION, et al., )
Defendants. )
__________________________________________)
DEFENDANT ROGERS CORPORATION’S REPLY TO PLAINTIFFS’ OBJECTION
TO ITS MOTION TO STRIKE PLAINTIFFS’ COMPLAINT
Defendant Rogers Corporation (hereinafter “Rogers”) submits this Reply to Plaintiffs’
Objection to Rogers’ Motion to Strike Plaintiffs’ Complaint.
I. INTRODUCTION
Rogers’ Motion to Strike requests that all counts against Rogers in Plaintiffs’ Complaint
be stricken, including Counts I and III asserting product liability claims. Plaintiffs contend that
“there is a viable product liability claim” against Rogers because Rogers was both Mr. Tomko’s
employer and a product manufacturer. (Pls.’ Obj., at 3.) However, a review of their Objection
and the factual allegations in their Complaint unambiguously confirms that their claims against
Rogers arise solely from Rogers and Mr. Tomko’s employer-employee relationship. (Id., at 1; Ex.
A to Rogers’ Mem. of Law). Since the exclusivity provision of the Workers’ Compensation Act
is “a total bar to common law actions brought by employees against employers for job related
injuries with one narrow exception . . . ,” Plaintiffs’ product liability counts fail as a matter of law.
See Suarez v. Dickmont Plastics Corp. (Suarez I), 229 Conn. 99, 106 (1994). Additionally,
1
ostensibly acknowledging that there is just “one narrow exception” to the workers’ compensation
exclusivity bar, Plaintiffs’ Complaint also asserts Count IV (“Intentional Tort/Substantial
Certainty”) against Rogers. As there can be no valid product liability claim against Rogers as a
matter of law, Plaintiffs’ attempt to avoid Count IV being stricken as time-barred by invoking the
specialized product liability limitations period also fails. Lastly, given their withdrawal of Count
II (“Recklessness”) as to Rogers and given that Counts I, III and IV should be stricken, Plaintiffs’
derivative loss of consortium claim in Count V cannot survive.
II. ARGUMENT
A. As Plaintiffs’ Complaint Alleges Injury by Mr. Tomko “Throughout the
Course of His Employment at Rogers,” the Product Liability Claims Asserted
in Counts I and III Fail as a Matter of Law.
As to Counts I and III, Plaintiffs’ Objection contends that they have a valid product liability
claim against Rogers, because their Complaint alleges that Rogers was a manufacturer of asbestos
products and that Mr. Tomko was exposed to asbestos at a Rogers’ manufacturing plant. (Pls.’
Obj., at 3-4.) As a threshold matter, however, the very first page of their Objection clarifies that
they sued Rogers for injuries that Mr. Tomko allegedly sustained during his employment. Indeed,
they characterized this action as a:
“Suarez claim’ against the defendant-employer, Rogers Corporation . . . , [which]
seeks to hold Rogers liable for the plaintiff-employee, Thomas Tomko’s malignant
mesothelioma, caused by Rogers’s [sic] intentional conduct under the exceptions
to the exclusivity provision of the Workers’ Compensation Act.
(Id., at 1.) (Emphases added.)
Moreover, Plaintiffs agree that, in deciding a motion to strike, the Court must assume the
truth of all well-pleaded facts. (Id., at 2). Here, their Complaint pleads the following key facts:
• “The plaintiff, THOMAS TOMKO, was exposed to asbestos-containing products
though his work as a plant worker at Rogers Corporation from 1973-1977.” (Ex. A to
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Rogers’ Mem. of Law, at ¶ 5.) (Emphasis added.)
• “At all relevant times that the plaintiff was working, the plaintiff was exposed to asbestos
materials and products, which as part of the plaintiff’s employment, the plaintiff was
forced to come into contact with . . . .” (Id., at ¶ 8.) (Emphases added.)
• “Plaintiff, Thomas Tomko, was employed by Rogers Corporation from 1973-1977 at
Rogers Corporation plant in Manchester, Connecticut.” (Id., at ¶ 30.) (Emphasis added.)
• “Throughout the course of his employment at Rogers Corporation, the plaintiff was
exposed to said asbestos . . . .” (Id., at ¶ 33.) (Emphasis added.)
• “Throughout the course of his employment at Rogers Corporation, the plaintiff was
exposed to, inhaled and/or ingested dusts . . . .” (Id., at ¶ 34.) (Emphasis added.)
• “Throughout the course of his employment at Rogers Corporation, the plaintiff was not
provided with proper protection or knowledge . . . .” (Id., at ¶ 35.) (Emphasis added.)
• “Rogers Corporation never warned its employees, including the plaintiff . . . .” (Id., at ¶
37.) (Emphasis added.)
Thus, when determining the legal sufficiency of Counts I and III as to Rogers, the Court must accept
as true that there was an employer-employee relationship between Rogers and Mr. Tomko and that
Mr. Tomko sustained a job-related injury.
On their very face, said factual allegations bar Plaintiffs from bringing a product liability
claim against Rogers in Connecticut. It is well established that the Workers’ Compensation Act is
the exclusive remedy for an employee injured in the course of employment, except in the “rare”
case when a plaintiff can satisfy the “substantial certainty test.” See, e.g., Suarez I, 229 Conn. at
106 (“We consistently have interpreted the exclusivity provision of the act . . . as a total bar to
common law actions brought by employees against employers for job related injuries with one
3
narrow exception that exists when the employer has committed an intentional tort . . . .”);
Mingachos v. CBS, Inc., 196 Conn. 91, 97 (1985) (holding that the Workers’ Compensation 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”); Jett v. Dunlap, 179 Conn. 215, 217 (1979) (“[I]n
previous decisions under the Workmen’s Compensation Act we have consistently held that where
a worker’s personal injury is covered by the act, statutory compensation is the sole remedy and
recovery in common-law tort against the employer is barred.”).
Plaintiffs’ Objection provides no legal support for their contention that, “[d]espite the fact
that Mr. Tomko was employed by Rogers,” they have a valid product liability claim because Rogers
was also “in the business of manufacturing or distributing asbestos products.” (Pls.’ Obj., at 3-4.)
As this Court previously explained in granting a defendant’s motion to strike, “[t]he Connecticut
Supreme Court has repeatedly refused to carve out a dual capacity exception to the exclusivity
provision of the Workers’ Compensation Act.” Humphrey-Norman v. City of Waterbury, No.
CV085009069S, 2009 WL 1532156, at *3 (Apr. 23, 2009) (Brunetti, J.) (internal quotations
omitted; alteration in original), attached hereto as Exhibit 1; see also Melius v. Federal Express
Corp., 76 F.Supp.2d 233, 235-36 (D.Conn.1999) (dismissing plaintiff-employee’s product liability
claim against defendant-employer FedEx after noting that “[t]he State Legislature has never
recognized the dual capacity doctrine as an exception to the exclusivity provision . . . .”).
Moreover, Plaintiffs notably make no attempt to argue that the Product Liability Act
overrides the exclusivity provision of the Workers’ Compensation Act. See, generally, Daily v.
New Britain Mach. Co., 200 Conn. 562, 579 (1986) (“Workers’ compensation as the sole recovery
benefited workers by lowering transaction costs, by providing prompt payments, and by
guaranteeing benefits . . . without the burden of proving fault as a basis for liability. On the other
4
hand, nonemployees retained the right to sue and recover from the manufacturer . . . .”) (emphasis
added); Melius, 76 F.Supp.2d at 236 (“The definition of ‘product seller’ makes no mention of the
plaintiff’s employer. . . . Moreover, .. . rather than overriding the exclusivity provision of the
Workers’ Compensation Act, the Products Liability Act specifically recognizes that certain
claimants will be receiving workers’ compensation benefits for the injuries that they have sustained
in the workplace from a defective product.”).
Accordingly, as a matter of law, the allegations pleaded in Counts I and III regarding Mr.
Tomko’s job-related injury at a Rogers’ plant require that both counts be stricken.
B. As the Three-Year Intentional Tort Statute of Limitations Applies to Count IV
(Not the Limitations Period Applicable to a Product Liability Claim), That
Claim Is Time-Barred.
Plaintiffs argue that the limitations period set forth in § 52-577a governs and that Rogers
“incorrectly cites the limitation period of § 52-577,” because “Count IV alleges an intentional tort
. . . in the context of a product liability claim.” (Pls.’ Obj., at 5-6.) Plaintiffs’ contention lacks
merit for several reasons.
First, as discussed above, Plaintiffs’ assertion of a product lability claim against the
defendant-employer Rogers fails as a matter of law. Second, the plain language of Plaintiffs’
Counts III and IV belies their attempt to read a product liability claim into their intentional tort
claim. Count III titled “Product liability/Substantial Certainty as against Rogers Corporation” is
demonstrably separate and distinct from Count IV titled “Intentional Tort/Substantial Certainty
as against Rogers Corporation.” (Ex. A to Rogers’ Mem. of Law.) (Emphases added.) Third, since
Plaintiffs cite no other specialized statute of limitations beyond the product liability one, it is the
“[t]he general rule in Connecticut” that the three-year statute of limitations set forth in § 52-577
governs.” See Doe #2 v. Radcliffe, 337 Conn. 627, 634 (2020) (“The three year limitation period
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in § 52-577 applies to all tort actions except (1) negligence claims, which are governed by § 52-
584, and (2) tort claims governed by a specialized statute of limitations.”).
Significantly, Plaintiffs’ Objection does not contest Rogers’ argument that the factual
allegation in Paragraph 30 of their Complaint compels a holding that Count IV is time-barred if §
52-577’s three-year limitations period applies. Accordingly, this Court should strike Count IV on
statute of limitations grounds.
C. As There Are No Underlying Claims that Survive Rogers’ Motion to Strike, the
Derivative Loss of Consortium Claim in Count V Cannot Survive.
Plaintiffs’ argument against the extinguishment of their Count V loss of consortium claim
rests entirely upon the survival of Count I, II, III and/or IV. (Pls.’ Obj., at 6.) They do not argue
that they can maintain Count V against Rogers independent of one of their other counts.
Since Plaintiffs’ Objection states that “[t]he plaintiffs will withdraw Count II (Recklessness)
against . . . Rogers” and since Counts I, III and IV should be stricken for the reasons above, Mrs.
Tomko’s derivative Count V should also be stricken. (Pls.’ Obj, at 5.)
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III. CONCLUSION
For the reasons set forth herein as well as in Rogers’ Memorandum of Law in Support of
Its Motion to Strike Plaintiffs’ Complaint, Rogers respectfully requests that this Court grant its
Motion to Strike as to all of Plaintiffs’ claims against Rogers.
Respectfully submitted,
The Defendant,
ROGERS CORPORATION,
By its attorneys,
/s/ Mark J. Hoover______________________
Mark J. Hoover
Pierce Davis & Perritano LLP
10 Post Office Square, Suite 1100N
Boston, MA 02109
(617) 350-0950
Juris No.: 410899
Dated: May 20, 2022
CERTIFICATION
I, Mark J. Hoover, hereby certify that a true copy of the above document was served
electronically via e-mail to all parties of record.
/s/ Mark J. Hoover
____________________________________
Mark J. Hoover
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EXHIBIT 1
Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009)
47 Conn. L. Rptr. 598
Opinion
2009 WL 1532156
Only the Westlaw citation is currently available. BRUNETTI, J.
UNPUBLISHED OPINION. CHECK *1 This matter is before the court on the defendant, City
COURT RULES BEFORE CITING. of Waterbury's motion to strike the one-count complaint filed
by the plaintiff on the grounds that the plaintiff has failed
Superior Court of Connecticut,
to allege that the defendant's intentional, willful or malicious
Judicial District of Waterbury.
action caused her alleged injuries. Therefore, the plaintiff's
claim is precluded under the exclusivity provision of the
Donna HUMPHREY-NORMAN Workers' Compensation Act.
v.
CITY OF WATERBURY.
FACTS
No. CV085009069S.
| The plaintiff,Donna Humphrey-Norman, commenced this
April 23, 2009. action by service of process on the defendant, City of
Waterbury, on May 9, 2008. The plaintiff's one-count revised
complaint, filed on July 3, 2008, alleges that on March 21,
West KeySummary 2007, the plaintiff slipped and fell “due to an accumulation of
ice and snow” when she was exiting her car on a city-owned
1 Workers' Compensation Willful or street adjacent to the front entrance to the Woodrow Wilson
Deliberate Act or Negligence School, which is located at 235 Birch Street in Waterbury,
Connecticut. (Revised Complaint, ¶ 3.) The plaintiff seeks
A school employee could not bring a negligence
damages for injuries caused by the defendant's alleged
claim against the city, which was her employer,
negligence in failing to keep the street reasonably safe for
since she could not prove that the city acted
public use.
with intentional, willful, or malicious conduct.
Employee received worker's compensation
According to the revised complaint, the plaintiff was acting
benefits and medical benefits for her alleged
in the course of her employment with the Waterbury board
injury when she slipped and fellon a city-
of education when she suffered her alleged injuries,and
owned street. Since employee was injured in the
she received workers' compensation benefits and other
course of her employment and received worker's
benefits, including medical care, pursuant to the Workers'
compensation, employee could not maintain a
Compensation Act, General Statutes § 31-275 et seq. The
negligence claim since she could not overcome
plaintiff further alleges that she furnished written notice of
the narrow exception to the exclusivity bar for
the claim to the defendant's city clerk, pursuant to General
intentional torts or willful or serious misconduct.
Statutes § 13a-149.
C.G.S.A. §§ 31-275, 31-284(a).
The defendant filed a motion to intervene on June 10,
2009, pursuant to General Statutes § 31-293(a),1 claiming
reimbursement for any damages that the plaintiff recovers in
Attorneys and Law Firms the present action.
Dodd Law Firm LLC, for Donna Humphrey-Norman. The defendant filed a motion to strike the plaintiff's original
complaint with a supporting memorandum of law on June 30,
Waterbury Corporation Counsel, for City of Waterbury.
2008, and the plaintiff filed an objection and a supporting
memorandum of law on July 15, 2008. Meanwhile, the
plaintifffiled a revised complaint on July 3, 2008, which
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1
Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009)
47 Conn. L. Rptr. 598
deleted the phrase “in particularthe Department of Public board of education, when she received workers' compensation
Works” from the complaint's first paragraph. benefits. (Objection to Motion to Strike, p. 1.)
Following the filing of these pleadings, there was significant “Connecticut's Workers' Compensation Act (act), General
confusion about the resolution of the motion to strike. The Statutes § 31-275 et seq., is the exclusive remedy for injuries
plaintiff filed a series of motions, including a notice of intentsustained by an employee ‘arising out of and in the course
to appeal and a motion for articulation on August 26, 2008, of his employment ...’ General Statutes § 31-284(a). Under
which stated that the Superior Court, Alvord, J., had granted the act's strict liability provisions, workers are compensated
the motion to strike on July 21, 2008. The defendant filed without regard to fault. In return for a relatively low burden
a motion for judgment on September 11, 2008, which also of proof and expeditious recovery, employees relinquish their
stated that Judge Alvord granted the motion to strike on July right to any common-law tortclaim for their injuries ...
21, 2008. The record shows, however, that the motion to strike Generally, then, all rights and claims between employers and
was not decided on July 21, 2008, and remains pending. employees, or theirrepresentatives or dependents, arising
out of personal injury or death sustained in the course of
employment are abolished as a result of the act's exclusivity
bar.” (Citation omitted; internal quotation marks omitted.)
DISCUSSION
Johnson v.Atkinson, 283 Conn. 243, 251, 926 A.2d 656
“The purpose of a motion to strike is to contest ...the (2007).
legal sufficiency of the allegations of any complaint ...to
state a claim upon which reliefcan be granted.” (Internal “There is an exception, however, to the exclusivity provision
quotation marks omitted.) Fort Trumbull Conservancy, LLC v. of the workers' compensation statute. That one exception
Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[I]f facts exists when the intentional tort of an employer injuresan
provable in the complaint would support a cause of action, employee or when the employer has engaged in willful or
the motion to strike must be denied ... Moreover ... [w]hat is serious misconduct.” Sorban v. Sterling Engineering Corp.,
necessarily implied [in an allegation] need not be expressly 79 Conn.App. 444, 449, 830 A.2d 372, cert.denied., 266
alleged ... It is fundamental that in determining the sufficiencyConn. 925, 835 A.2d 473 (2003).
of a complaint challenged by a defendant's motion to strike,
all well-pleaded facts and those facts necessarily implied from As a preliminary matter, the plaintiffwas the defendant's
the allegations are taken as admitted ... Indeed, pleadings must employee. The Supreme Court has held “that local boards
be construed broadly and realistically, rather than narrowly of education act on behalf of the municipality they serve as
and technically.” (Internal quotation marks omitted.) Violano well as in fulfillment of their state mandates and that their
v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). professional and nonprofessional employees are employees
of the municipality ...”Cheshire v. McKenney, 182 Conn.
*2 The defendant argues that the plaintiff's complaint should 253, 260, 438 A.2d 88 (1980). Therefore, the plaintiff, as an
be stricken in its entirety because the plaintiff was employed employee of the board of education, was also an employee of
by the City of Waterbury, was injured in the course of her the defendant municipality served by the board of education.
employment, and received workers' compensation benefits.
The defendant argues that under these facts, the plaintiff is The plaintiff argues that even if she was an employee
precluded under the exclusivity provision of the Workers' of the municipality, she should not be excluded from
Compensation Act from bringing a negligence suit against bringing a negligence claim against the municipality because
her employer, and, therefore, the plaintiff has failed to state ait was also responsible, via a separate department that
claim upon which relief may be granted. operated independently from the board of education, for
maintaining the road where she allegedly was injured. She
The plaintiffargues thatshe has stated a claim for which argues that a contrary ruling “would effectively limit [her]
relief may be granted because the exclusivity provision of the right to recovery not only in thisaction, but also against
Workers' Compensation Act does not preclude suits against a all claims arising during her employment from any city
municipality for negligence if the employee worked for one department.” (Memorandum of Law in Objection to Motion
of the municipality's “independently functioning entities,” the to Strike, p. 3.)
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2
Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009)
47 Conn. L. Rptr. 598
it committed its alleged act of negligence. As a result, the
*3 The plaintiff's policy argument is inapposite, however,
plaintiff may not bring a claim against the defendant unless
as the Supreme Court has held that an employee of the
she can overcome the narrow exception to the exclusivity bar
board of education was excluded from suing his municipal
for intentional torts or willful or serious misconduct.
employer for negligence following a slip and fall on a public
sidewalk. Mase v. Meriden, 164 Conn. 65, 66, 316 A.2d
The court finds the plaintiff's
revised complaint does not
754 (1977). Because the employee was injured in the course
allege that the defendant committed an intentional tort or
of his employment and received workers' compensation, his
that the defendant engaged in willful or serious misconduct,
exclusive remedy was the Workers' Compensation Act. Id.
which is necessary to overcome the exclusivity provision
of the Workers' Compensation Act. The plaintiff's complaint
Furthermore, “[t]he Connecticut Supreme Court has
sounds in negligence, alleging that her injury “was due to the
repeatedly refused to carve out a dual capacity2 exception
breach or violation by the defendant, City of Waterbury, of its
to the exclusivity provision of the Workers' Compensation
statutory duty to use a reasonable care to keep its highways
Act.” Melius v. Federal Express Corp., 76 F.Sup.2d 233,
and/or streets reasonably safe for public use and travel in one
235 (D.Conn.1999) (exclusivity provision barred claim where
or more of the following ways.” (Revised Complaint, ¶ 4.)
the defendant was both the plaintiff'semployer and the
None of those ways listed supports a finding of intentional,
manufacturer of a product that allegedly injured the plaintiff).
willful or malicious conduct. Therefore, for the aforesaid
See also Panaro v. Electrolux Corp., 208 Conn. 589, 600,
reason the defendant's motion to strike is granted.
545 A.2d 1086 (1988) (rejecting dual capacity doctrine for
alleged malpractice of a company nurse at a medical facility
maintained by the plaintiff's employer). All Citations
Thus, the plaintiff may not bring a negligence action against Not Reported in A.2d, 2009 WL 1532156, 47 Conn. L. Rptr.
her employer even though the employer may have been 598
acting through an “independently functioning entity” when
Footnotes
1 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; 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 ...
2 The Supreme Court has explained “The ‘dual capacity’ doctrine ... often describes the situation where an employer has
two capacities, such as employer and owner ... or employer and product seller ... An employer may become a third
person, vulnerable to tort suit by an employee if-and only if-he possesses a second persona so completely independent
from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal
person.” (Citations omitted; internal quotation marks omitted.) Panaro v. Electrolux Corp., 208 Conn. 589, 593-94 n. 5,
545 A.2d 1086 (1988).
End of Document © 2022 Thomson Reuters. No claim to original U.S.
Government Works.
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3
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STATE OF CONNECTICUT IN RE: BRIDGEPORT ASBESTOS SUPERIOR COURT JUDICIAL LITIGATION DISTRICT OF FAIRFIELD AT BRIDGEPORT DOCKET NO: FBT-CV22-6113982-S __________________________________________ THOMAS TOMKO and DEBORAH TOMKO ) ) Plaintiffs, ) ) VS. ) ) ROGERS CORPORATION, et al., ) Defendants. ) __________________________________________) DEFENDANT ROGERS CORPORATION’S REPLY TO PLAINTIFFS’ OBJECTION TO ITS MOTION TO STRIKE PLAINTIFFS’ COMPLAINT Defendant Rogers Corporation (hereinafter “Rogers”) submits this Reply to Plaintiffs’ Objection to Rogers’ Motion to Strike Plaintiffs’ Complaint. I. INTRODUCTION Rogers’ Motion to Strike requests that all counts against Rogers in Plaintiffs’ Complaint be stricken, including Counts I and III asserting product liability claims. Plaintiffs contend that “there is a viable product liability claim” against Rogers because Rogers was both Mr. Tomko’s employer and a product manufacturer. (Pls.’ Obj., at 3.) However, a review of their Objection and the factual allegations in their Complaint unambiguously confirms that their claims against Rogers arise solely from Rogers and Mr. Tomko’s employer-employee relationship. (Id., at 1; Ex. A to Rogers’ Mem. of Law). Since the exclusivity provision of the Workers’ Compensation Act is “a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception . . . ,” Plaintiffs’ product liability counts fail as a matter of law. See Suarez v. Dickmont Plastics Corp. (Suarez I), 229 Conn. 99, 106 (1994). Additionally, 1 ostensibly acknowledging that there is just “one narrow exception” to the workers’ compensation exclusivity bar, Plaintiffs’ Complaint also asserts Count IV (“Intentional Tort/Substantial Certainty”) against Rogers. As there can be no valid product liability claim against Rogers as a matter of law, Plaintiffs’ attempt to avoid Count IV being stricken as time-barred by invoking the specialized product liability limitations period also fails. Lastly, given their withdrawal of Count II (“Recklessness”) as to Rogers and given that Counts I, III and IV should be stricken, Plaintiffs’ derivative loss of consortium claim in Count V cannot survive. II. ARGUMENT A. As Plaintiffs’ Complaint Alleges Injury by Mr. Tomko “Throughout the Course of His Employment at Rogers,” the Product Liability Claims Asserted in Counts I and III Fail as a Matter of Law. As to Counts I and III, Plaintiffs’ Objection contends that they have a valid product liability claim against Rogers, because their Complaint alleges that Rogers was a manufacturer of asbestos products and that Mr. Tomko was exposed to asbestos at a Rogers’ manufacturing plant. (Pls.’ Obj., at 3-4.) As a threshold matter, however, the very first page of their Objection clarifies that they sued Rogers for injuries that Mr. Tomko allegedly sustained during his employment. Indeed, they characterized this action as a: “Suarez claim’ against the defendant-employer, Rogers Corporation . . . , [which] seeks to hold Rogers liable for the plaintiff-employee, Thomas Tomko’s malignant mesothelioma, caused by Rogers’s [sic] intentional conduct under the exceptions to the exclusivity provision of the Workers’ Compensation Act. (Id., at 1.) (Emphases added.) Moreover, Plaintiffs agree that, in deciding a motion to strike, the Court must assume the truth of all well-pleaded facts. (Id., at 2). Here, their Complaint pleads the following key facts: • “The plaintiff, THOMAS TOMKO, was exposed to asbestos-containing products though his work as a plant worker at Rogers Corporation from 1973-1977.” (Ex. A to 2 Rogers’ Mem. of Law, at ¶ 5.) (Emphasis added.) • “At all relevant times that the plaintiff was working, the plaintiff was exposed to asbestos materials and products, which as part of the plaintiff’s employment, the plaintiff was forced to come into contact with . . . .” (Id., at ¶ 8.) (Emphases added.) • “Plaintiff, Thomas Tomko, was employed by Rogers Corporation from 1973-1977 at Rogers Corporation plant in Manchester, Connecticut.” (Id., at ¶ 30.) (Emphasis added.) • “Throughout the course of his employment at Rogers Corporation, the plaintiff was exposed to said asbestos . . . .” (Id., at ¶ 33.) (Emphasis added.) • “Throughout the course of his employment at Rogers Corporation, the plaintiff was exposed to, inhaled and/or ingested dusts . . . .” (Id., at ¶ 34.) (Emphasis added.) • “Throughout the course of his employment at Rogers Corporation, the plaintiff was not provided with proper protection or knowledge . . . .” (Id., at ¶ 35.) (Emphasis added.) • “Rogers Corporation never warned its employees, including the plaintiff . . . .” (Id., at ¶ 37.) (Emphasis added.) Thus, when determining the legal sufficiency of Counts I and III as to Rogers, the Court must accept as true that there was an employer-employee relationship between Rogers and Mr. Tomko and that Mr. Tomko sustained a job-related injury. On their very face, said factual allegations bar Plaintiffs from bringing a product liability claim against Rogers in Connecticut. It is well established that the Workers’ Compensation Act is the exclusive remedy for an employee injured in the course of employment, except in the “rare” case when a plaintiff can satisfy the “substantial certainty test.” See, e.g., Suarez I, 229 Conn. at 106 (“We consistently have interpreted the exclusivity provision of the act . . . as a total bar to common law actions brought by employees against employers for job related injuries with one 3 narrow exception that exists when the employer has committed an intentional tort . . . .”); Mingachos v. CBS, Inc., 196 Conn. 91, 97 (1985) (holding that the Workers’ Compensation 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”); Jett v. Dunlap, 179 Conn. 215, 217 (1979) (“[I]n previous decisions under the Workmen’s Compensation Act we have consistently held that where a worker’s personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred.”). Plaintiffs’ Objection provides no legal support for their contention that, “[d]espite the fact that Mr. Tomko was employed by Rogers,” they have a valid product liability claim because Rogers was also “in the business of manufacturing or distributing asbestos products.” (Pls.’ Obj., at 3-4.) As this Court previously explained in granting a defendant’s motion to strike, “[t]he Connecticut Supreme Court has repeatedly refused to carve out a dual capacity exception to the exclusivity provision of the Workers’ Compensation Act.” Humphrey-Norman v. City of Waterbury, No. CV085009069S, 2009 WL 1532156, at *3 (Apr. 23, 2009) (Brunetti, J.) (internal quotations omitted; alteration in original), attached hereto as Exhibit 1; see also Melius v. Federal Express Corp., 76 F.Supp.2d 233, 235-36 (D.Conn.1999) (dismissing plaintiff-employee’s product liability claim against defendant-employer FedEx after noting that “[t]he State Legislature has never recognized the dual capacity doctrine as an exception to the exclusivity provision . . . .”). Moreover, Plaintiffs notably make no attempt to argue that the Product Liability Act overrides the exclusivity provision of the Workers’ Compensation Act. See, generally, Daily v. New Britain Mach. Co., 200 Conn. 562, 579 (1986) (“Workers’ compensation as the sole recovery benefited workers by lowering transaction costs, by providing prompt payments, and by guaranteeing benefits . . . without the burden of proving fault as a basis for liability. On the other 4 hand, nonemployees retained the right to sue and recover from the manufacturer . . . .”) (emphasis added); Melius, 76 F.Supp.2d at 236 (“The definition of ‘product seller’ makes no mention of the plaintiff’s employer. . . . Moreover, .. . rather than overriding the exclusivity provision of the Workers’ Compensation Act, the Products Liability Act specifically recognizes that certain claimants will be receiving workers’ compensation benefits for the injuries that they have sustained in the workplace from a defective product.”). Accordingly, as a matter of law, the allegations pleaded in Counts I and III regarding Mr. Tomko’s job-related injury at a Rogers’ plant require that both counts be stricken. B. As the Three-Year Intentional Tort Statute of Limitations Applies to Count IV (Not the Limitations Period Applicable to a Product Liability Claim), That Claim Is Time-Barred. Plaintiffs argue that the limitations period set forth in § 52-577a governs and that Rogers “incorrectly cites the limitation period of § 52-577,” because “Count IV alleges an intentional tort . . . in the context of a product liability claim.” (Pls.’ Obj., at 5-6.) Plaintiffs’ contention lacks merit for several reasons. First, as discussed above, Plaintiffs’ assertion of a product lability claim against the defendant-employer Rogers fails as a matter of law. Second, the plain language of Plaintiffs’ Counts III and IV belies their attempt to read a product liability claim into their intentional tort claim. Count III titled “Product liability/Substantial Certainty as against Rogers Corporation” is demonstrably separate and distinct from Count IV titled “Intentional Tort/Substantial Certainty as against Rogers Corporation.” (Ex. A to Rogers’ Mem. of Law.) (Emphases added.) Third, since Plaintiffs cite no other specialized statute of limitations beyond the product liability one, it is the “[t]he general rule in Connecticut” that the three-year statute of limitations set forth in § 52-577 governs.” See Doe #2 v. Radcliffe, 337 Conn. 627, 634 (2020) (“The three year limitation period 5 in § 52-577 applies to all tort actions except (1) negligence claims, which are governed by § 52- 584, and (2) tort claims governed by a specialized statute of limitations.”). Significantly, Plaintiffs’ Objection does not contest Rogers’ argument that the factual allegation in Paragraph 30 of their Complaint compels a holding that Count IV is time-barred if § 52-577’s three-year limitations period applies. Accordingly, this Court should strike Count IV on statute of limitations grounds. C. As There Are No Underlying Claims that Survive Rogers’ Motion to Strike, the Derivative Loss of Consortium Claim in Count V Cannot Survive. Plaintiffs’ argument against the extinguishment of their Count V loss of consortium claim rests entirely upon the survival of Count I, II, III and/or IV. (Pls.’ Obj., at 6.) They do not argue that they can maintain Count V against Rogers independent of one of their other counts. Since Plaintiffs’ Objection states that “[t]he plaintiffs will withdraw Count II (Recklessness) against . . . Rogers” and since Counts I, III and IV should be stricken for the reasons above, Mrs. Tomko’s derivative Count V should also be stricken. (Pls.’ Obj, at 5.) 6 III. CONCLUSION For the reasons set forth herein as well as in Rogers’ Memorandum of Law in Support of Its Motion to Strike Plaintiffs’ Complaint, Rogers respectfully requests that this Court grant its Motion to Strike as to all of Plaintiffs’ claims against Rogers. Respectfully submitted, The Defendant, ROGERS CORPORATION, By its attorneys, /s/ Mark J. Hoover______________________ Mark J. Hoover Pierce Davis & Perritano LLP 10 Post Office Square, Suite 1100N Boston, MA 02109 (617) 350-0950 Juris No.: 410899 Dated: May 20, 2022 CERTIFICATION I, Mark J. Hoover, hereby certify that a true copy of the above document was served electronically via e-mail to all parties of record. /s/ Mark J. Hoover ____________________________________ Mark J. Hoover 7 EXHIBIT 1 Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009) 47 Conn. L. Rptr. 598 Opinion 2009 WL 1532156 Only the Westlaw citation is currently available. BRUNETTI, J. UNPUBLISHED OPINION. CHECK *1 This matter is before the court on the defendant, City COURT RULES BEFORE CITING. of Waterbury's motion to strike the one-count complaint filed by the plaintiff on the grounds that the plaintiff has failed Superior Court of Connecticut, to allege that the defendant's intentional, willful or malicious Judicial District of Waterbury. action caused her alleged injuries. Therefore, the plaintiff's claim is precluded under the exclusivity provision of the Donna HUMPHREY-NORMAN Workers' Compensation Act. v. CITY OF WATERBURY. FACTS No. CV085009069S. | The plaintiff,Donna Humphrey-Norman, commenced this April 23, 2009. action by service of process on the defendant, City of Waterbury, on May 9, 2008. The plaintiff's one-count revised complaint, filed on July 3, 2008, alleges that on March 21, West KeySummary 2007, the plaintiff slipped and fell “due to an accumulation of ice and snow” when she was exiting her car on a city-owned 1 Workers' Compensation Willful or street adjacent to the front entrance to the Woodrow Wilson Deliberate Act or Negligence School, which is located at 235 Birch Street in Waterbury, Connecticut. (Revised Complaint, ¶ 3.) The plaintiff seeks A school employee could not bring a negligence damages for injuries caused by the defendant's alleged claim against the city, which was her employer, negligence in failing to keep the street reasonably safe for since she could not prove that the city acted public use. with intentional, willful, or malicious conduct. Employee received worker's compensation According to the revised complaint, the plaintiff was acting benefits and medical benefits for her alleged in the course of her employment with the Waterbury board injury when she slipped and fellon a city- of education when she suffered her alleged injuries,and owned street. Since employee was injured in the she received workers' compensation benefits and other course of her employment and received worker's benefits, including medical care, pursuant to the Workers' compensation, employee could not maintain a Compensation Act, General Statutes § 31-275 et seq. The negligence claim since she could not overcome plaintiff further alleges that she furnished written notice of the narrow exception to the exclusivity bar for the claim to the defendant's city clerk, pursuant to General intentional torts or willful or serious misconduct. Statutes § 13a-149. C.G.S.A. §§ 31-275, 31-284(a). The defendant filed a motion to intervene on June 10, 2009, pursuant to General Statutes § 31-293(a),1 claiming reimbursement for any damages that the plaintiff recovers in Attorneys and Law Firms the present action. Dodd Law Firm LLC, for Donna Humphrey-Norman. The defendant filed a motion to strike the plaintiff's original complaint with a supporting memorandum of law on June 30, Waterbury Corporation Counsel, for City of Waterbury. 2008, and the plaintiff filed an objection and a supporting memorandum of law on July 15, 2008. Meanwhile, the plaintifffiled a revised complaint on July 3, 2008, which © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009) 47 Conn. L. Rptr. 598 deleted the phrase “in particularthe Department of Public board of education, when she received workers' compensation Works” from the complaint's first paragraph. benefits. (Objection to Motion to Strike, p. 1.) Following the filing of these pleadings, there was significant “Connecticut's Workers' Compensation Act (act), General confusion about the resolution of the motion to strike. The Statutes § 31-275 et seq., is the exclusive remedy for injuries plaintiff filed a series of motions, including a notice of intentsustained by an employee ‘arising out of and in the course to appeal and a motion for articulation on August 26, 2008, of his employment ...’ General Statutes § 31-284(a). Under which stated that the Superior Court, Alvord, J., had granted the act's strict liability provisions, workers are compensated the motion to strike on July 21, 2008. The defendant filed without regard to fault. In return for a relatively low burden a motion for judgment on September 11, 2008, which also of proof and expeditious recovery, employees relinquish their stated that Judge Alvord granted the motion to strike on July right to any common-law tortclaim for their injuries ... 21, 2008. The record shows, however, that the motion to strike Generally, then, all rights and claims between employers and was not decided on July 21, 2008, and remains pending. employees, or theirrepresentatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar.” (Citation omitted; internal quotation marks omitted.) DISCUSSION Johnson v.Atkinson, 283 Conn. 243, 251, 926 A.2d 656 “The purpose of a motion to strike is to contest ...the (2007). legal sufficiency of the allegations of any complaint ...to state a claim upon which reliefcan be granted.” (Internal “There is an exception, however, to the exclusivity provision quotation marks omitted.) Fort Trumbull Conservancy, LLC v. of the workers' compensation statute. That one exception Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[I]f facts exists when the intentional tort of an employer injuresan provable in the complaint would support a cause of action, employee or when the employer has engaged in willful or the motion to strike must be denied ... Moreover ... [w]hat is serious misconduct.” Sorban v. Sterling Engineering Corp., necessarily implied [in an allegation] need not be expressly 79 Conn.App. 444, 449, 830 A.2d 372, cert.denied., 266 alleged ... It is fundamental that in determining the sufficiencyConn. 925, 835 A.2d 473 (2003). of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from As a preliminary matter, the plaintiffwas the defendant's the allegations are taken as admitted ... Indeed, pleadings must employee. The Supreme Court has held “that local boards be construed broadly and realistically, rather than narrowly of education act on behalf of the municipality they serve as and technically.” (Internal quotation marks omitted.) Violano well as in fulfillment of their state mandates and that their v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). professional and nonprofessional employees are employees of the municipality ...”Cheshire v. McKenney, 182 Conn. *2 The defendant argues that the plaintiff's complaint should 253, 260, 438 A.2d 88 (1980). Therefore, the plaintiff, as an be stricken in its entirety because the plaintiff was employed employee of the board of education, was also an employee of by the City of Waterbury, was injured in the course of her the defendant municipality served by the board of education. employment, and received workers' compensation benefits. The defendant argues that under these facts, the plaintiff is The plaintiff argues that even if she was an employee precluded under the exclusivity provision of the Workers' of the municipality, she should not be excluded from Compensation Act from bringing a negligence suit against bringing a negligence claim against the municipality because her employer, and, therefore, the plaintiff has failed to state ait was also responsible, via a separate department that claim upon which relief may be granted. operated independently from the board of education, for maintaining the road where she allegedly was injured. She The plaintiffargues thatshe has stated a claim for which argues that a contrary ruling “would effectively limit [her] relief may be granted because the exclusivity provision of the right to recovery not only in thisaction, but also against Workers' Compensation Act does not preclude suits against a all claims arising during her employment from any city municipality for negligence if the employee worked for one department.” (Memorandum of Law in Objection to Motion of the municipality's “independently functioning entities,” the to Strike, p. 3.) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 Humphrey-Norman v. City of Waterbury, Not Reported in A.2d (2009) 47 Conn. L. Rptr. 598 it committed its alleged act of negligence. As a result, the *3 The plaintiff's policy argument is inapposite, however, plaintiff may not bring a claim against the defendant unless as the Supreme Court has held that an employee of the she can overcome the narrow exception to the exclusivity bar board of education was excluded from suing his municipal for intentional torts or willful or serious misconduct. employer for negligence following a slip and fall on a public sidewalk. Mase v. Meriden, 164 Conn. 65, 66, 316 A.2d The court finds the plaintiff's revised complaint does not 754 (1977). Because the employee was injured in the course allege that the defendant committed an intentional tort or of his employment and received workers' compensation, his that the defendant engaged in willful or serious misconduct, exclusive remedy was the Workers' Compensation Act. Id. which is necessary to overcome the exclusivity provision of the Workers' Compensation Act. The plaintiff's complaint Furthermore, “[t]he Connecticut Supreme Court has sounds in negligence, alleging that her injury “was due to the repeatedly refused to carve out a dual capacity2 exception breach or violation by the defendant, City of Waterbury, of its to the exclusivity provision of the Workers' Compensation statutory duty to use a reasonable care to keep its highways Act.” Melius v. Federal Express Corp., 76 F.Sup.2d 233, and/or streets reasonably safe for public use and travel in one 235 (D.Conn.1999) (exclusivity provision barred claim where or more of the following ways.” (Revised Complaint, ¶ 4.) the defendant was both the plaintiff'semployer and the None of those ways listed supports a finding of intentional, manufacturer of a product that allegedly injured the plaintiff). willful or malicious conduct. Therefore, for the aforesaid See also Panaro v. Electrolux Corp., 208 Conn. 589, 600, reason the defendant's motion to strike is granted. 545 A.2d 1086 (1988) (rejecting dual capacity doctrine for alleged malpractice of a company nurse at a medical facility maintained by the plaintiff's employer). All Citations Thus, the plaintiff may not bring a negligence action against Not Reported in A.2d, 2009 WL 1532156, 47 Conn. L. Rptr. her employer even though the employer may have been 598 acting through an “independently functioning entity” when Footnotes 1 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; 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 ... 2 The Supreme Court has explained “The ‘dual capacity’ doctrine ... often describes the situation where an employer has two capacities, such as employer and owner ... or employer and product seller ... An employer may become a third person, vulnerable to tort suit by an employee if-and only if-he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” (Citations omitted; internal quotation marks omitted.) Panaro v. Electrolux Corp., 208 Conn. 589, 593-94 n. 5, 545 A.2d 1086 (1988). End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3