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Waterbury LODD Widow’s Suit Dismissed Based on Workers Comp Exclusivity

The Connecticut Supreme Court has handled down a ruling in a LODD wrongful death case arising out of an accident in 2007 between two Waterbury Fire Department apparatus. Because there has been so much misinformation in the media and various blogs about the case playing the “how could the court do this to a poor widow” card, it is worth going a bit deeper to better understand the issues.

The case arose out of the May 19, 2007 accident between Truck 1 and Engine 12 while responding to a reported fire. Captain John Keane was killed in the accident.

The key players in the accident and the subsequent suit(s) were Joseph Fischetti, who was driving Engine 12, Captain Keane who was in charge of Engine 12, and William Mahoney who drove Truck 1.

Captain Keane’s widow, Monica Keane, filed suit against Fischetti and Mahoney for negligence and wrongful death. Mahoney and his wife Erin filed a second suit against Fischetti and Captain Keane’s Estate alleging that they were legally responsible for the accident, seeking damages for personal injury.

All parties sought to defend themselves under a provision in Connecticut General Laws § 7-308 that states as follows:

If a fireman or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious.

The quoted section embodies the concept of what is known as the workers compensation exclusivity doctrine. The abbreviated version is that workers compensation is the exclusive remedy for employees who are injured at work through the negligence of their employer or co-workers. The entire concept of workers compensation rests on a trade off – that workers will receive compensation through insurance for work related injuries without regard to fault, and in exchange workers give up the right to sue for those injuries. Chapter 10 of Legal Considerations and Fire Officer’s Legal Handbook covers this topic in greater detail.

Based on § 7-308, the trial court dismissed the entire action. On appeal the Connecticut Supreme Court addressed a very narrow legal argument advanced by Mrs. Keane, whether § 7-308 violated the Equal Protection Clause of the Connecticut and US constitutions by denying her the right to sue. The court concluded that workers comp exclusivity does not violate equal protection because there was a rational basis for the state to decide to have a workers’ compensation system. To rule otherwise would essentially call all workers compensation programs (at least in Connecticut) into question.

So while the headlines about this case might read “Court Denies Widow the Right to Sue”, they might just as accurately read “Court Upholds Liability Protection Afforded to Firefighters” – the other side of this two-edged sword.

It is worth pointing out – not all states apply workers comp exclusivity under these circumstances. For example, Rhode Island law currently allows the estate of a deceased firefighter to sue a co-worker or even the fire department for wrongful death. See Hargreaves v. Jack, 750 A .2d 430 (R.I.2000). That gives me no great comfort…. I think Connecticut has it right.

Here is a copy of the decision, with an official release date of March 15, 2011. CTSCDecisionExclusivity

Comments - Add Yours

  • DJB

    Excellent discussion but you do not appear to clearly define what I believe is the crux of the argument. Firefighters are the ONLY group in Connecticut that may not bring an action against a coworker for negligence in the operation of a motor vehicle. They receive no additional consideration for this limitation. This measure is ostensibly to reduce municipal liability but results in a double standard. Imagine a similar case but instead insert a non-fire department ambulance with four EMTs performing CPR in back. The occupants/coworkers would be fully able to take civil action against the driver. I would argue that this employer/vehicle operator liability is a huge benefit for the employees and should be extended to the fire service. It provides an additional strong incentive for the employer to ensure appropriate driver training, safe vehicle operation and to employ occupant restraint systems. It furthermore allows for appropriate compensation for victims in a preventable incident and hopefully is a deterrent to unsafe vehicle operation. Within the Connecticut Fire Service, I hope this case will be a wake-up call for the rank and file to consider lobbying to change this statute and to contemporaneously work with leadership to curb aggressive or reckless apparatus operation.

  • http://firelawblog.com Curt Varone

    DJB

    Interesting observation – but keep in mind it is a 2 edge sword. You are suggesting that a firefighter is being deprived of the right to sue another firefighter. Careful what you wish for.