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Harbec v. Benjamin Shaw et al.

CASE NO. 3628 CRB-08-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 16, 1998

AURORE HARBEC Dependent widow of LEO HARBEC (Deceased)

CLAIMANT-APPELLANT

v.

BENJAMIN SHAW

W.J. BARNEY

TGS, INC.

McCRORY & MARREN

COURTER & CO.

NAVCO

UNINSURED EMPLOYER

O’NEIL PLUMBING

RILEY STOKER

DOW CHEMICAL

UTC/PRATT & WHITNEY

STONE & WEBSTER ENGINEERING

UNION CARBIDE

EMPLOYERS

and

AMERICAN MUTUAL

CONNECTICUT INSURANCE GUARANTEE ASSOCIATION

GALLAGHER BASSETT

LIBERTY MUTUAL

HARTFORD ITT INSURANCE GROUP

AETNA LIFE & CASUALTY

INSURERS

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Lindalea Ludwick, Esq., and Robert Sweeney, Esq., Early, Ludwick & Sweeney, 265 Church Street, P.O. Box 1866, New Haven, CT 06508-1866.

Union Carbide and Aetna Life & Casualty were represented by Michael O’Sullivan, Esq., 1 Civic Center Plaza, P.O. Box 930, Hartford, CT 06141-0930, who did not appear at oral argument.

Dow Chemical and Gallagher Bassett Service were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett, 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300, who did not appear at oral argument.

Stone & Webster and The Hartford ITT Insurance Group were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

UTC/Pratt & Whitney and Liberty Mutual was represented by Nancy S. Rosenbaum, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033, who did not appear at oral argument.

Benjamin Shaw, W.J. Barney and American Mutual were represented by David Kelly, Esq., and Joseph Passaretti, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was represented at the trial level by Ernie Walker, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

The Connecticut Insurance Guarantee Association (CIGA) was represented by Joseph C. Marrow, Esq., Hutchins, Wheeler & Ditmar, 101 Federal Street, Boston, MA 02110, who did not appear at oral argument.

This Petition for Review from the June 12, 1997 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 12, 1997 Finding and Dismissal of the trial commissioner acting for the Eighth District. In that decision, the trial commissioner interpreted the approved stipulation between the claimant and certain employers and their insurers as barring the claimant from proceeding against other employers and their insurers which were not named in the stipulation. In support of her appeal, the claimant contends that the language of the stipulation specifically left open the claimant’s right to pursue respondents not listed in the stipulation.

The trial commissioner found the following relevant facts. The claimant seeks benefits pursuant to § 31-306 as the surviving widow of the decedent, Leo Harbec, who died of cancer on January 19, 1989, allegedly due to asbestos exposure. The claimant stipulated her case on a compromised basis with several employers and insurers as follows: Electric Boat, Austin Company, Libby & Blinn, United Engineers and Constructors, Stone & Webster, John Ventura, the Fosket Bishop Piping Co., C.N. Flagg, Connecticut Boiler Heating, Hartwell Co., Benjamin L. Jones, Morris A. Fierberg, J. Ray McDermott, Tucker Co., Catalytic Inc., Benjamin F. Shaw (for 1955-57 Liberty Mutual coverage only), and these employers’ respective insurers. This stipulation settled the claimant’s claim for a total of $141,700.00. and was approved by a trial commissioner on February 19, 1993.

The trial commissioner further found that the claimant “did not settle her case totally, but attempted to leave her case open as to 1) Benjamin Shaw 1963-1970, when they were insured by American Mutual; 2) W.J. Barney 1956-65, when they were insured by American Mutual; and various employers including: TGS, Inc., McCrory & Marren, Courter & Co., NAVCO, O’Neil Plumbing, and Riley Stoked with No Record of insurance. At the August 9, 1993 formal hearing, claimant proceeded against employers: 1) Benjamin F. Shaw, 2) W.J. Barney and 3) NAVCO... and withdrew her claims against the other No Record of insurance employers....” (Paragraph 3 of Finding and Dismissal) (emphasis added).

The trial commissioner concluded that the claimant was legally barred from proceeding against these employers. Specifically, the trial commissioner relied on Duni v. United Technologies Corp./ Pratt & Whitney Aircraft Division, 239 Conn. 19 (1996). The trial commissioner found that a portion of the language in the stipulation in Duni was the same as a portion of the language in the instant case, and therefore concluded that the holding in Duni was controlling. We disagree, as the facts of Duni, supra, are readily distinguishable from the case at hand. Pursuant to the stipulation in Duni, supra, the respondents “agreed to make a lump sum payment to the decedent in return for his agreement to release them from any further liability in connection with his claim.” Id. at 22.1 The claimant widow in Duni did not contend that the stipulation was drafted with the intent to reserve the right to pursue other employers or insurers not named in the stipulation. Rather, the claimant widow merely argued that her decedent husband “lacked the authority to settle any claim for survivor’s benefits that she might later have” because her rights under § 31-306 were independent of her husband’s. Id. at 23. The court disagreed, and held that “an employee, in settling his or her claim for disability compensation, may also compromise his or her surviving dependents’ rights under § 31-306.” Id. at 30.

In the instant case, the trial commissioner relied upon the language of the stipulation which stated that the $141,700.00 constituted “a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries, or on account of any condition in any way resulting out of the said injuries....” The trial commissioner concluded that this language mirrored the language of the stipulation in Duni, (see f.n. 1, supra) and thus concluded that the holding in Duni, supra, barred the claimant’s claim in the instant case. Significantly, however, the trial commissioner overlooked the fact that the above quoted language in the stipulation was followed in the same sentence by the phrase “... that the claimant may have against respondents: Commercial Union, General Accident Fire & Life, Travelers, Aetna, CIGNA, The Hartford, Royal Indemnity, EBI/Security Insurance, and Liberty Mutual or any employer they have insured in connection with this claim.” In the instant case, the claimant seeks to pursue her claim against the insurer American Mutual and an uninsured employer, none of which were listed in the stipulation.

Unlike the facts of Duni, supra, where the decedent did not attempt to reserve his or his surviving widow’s right to pursue other employers, in the instant case the stipulation specifically provided as follows:

It is further understood and agreed that the claimant reserves her rights to prosecute fully her workers’ compensation claim against all employers and their insurer except for the following employers and insurers participating in this stipulation....” (Finding and Dismissal, paragraph 6) (emphasis added).

The stipulation then lists the twenty-five participating employers along with their respective insurers.

The respondent appellees have not set forth any legal basis for ignoring the stated intent of the stipulation, which was to allow the claimant to reserve her right to prosecute her claim against the respondents which did not enter into the stipulation. Indeed, our Supreme Court in discussing stipulations, stated: “It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts.... The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction.... It is similarly stated that a release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties....” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 482 (1994) (emphasis added).

In the instant case, the intent of the stipulation is clearly to preserve the claimant’s rights against non-parties to the agreement. There is no language within the stipulation that purports to give the non-parties any basis for relying upon the stipulation as a defense against further action by the claimant, and the law does not require that we read such language into the stipulation.

The commissioner ’s decision is reversed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 “The stipulation purported to ‘constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injuries or on account of any condition in any way resulting out of the said injuries.’” Duni, supra, at 22 and 31. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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