Antos v. Jaroslaw Korwek d/b/a Jerry’s Home Improvement

CASE NO. 5225 CRB-7-07-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 4, 2008

ANDRZEJ ANTOS

CLAIMANT-APPELLEE

v.

JAROSLAW KORWEK d/b/a JERRY’S HOME IMPROVEMENT

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by William M. O’Donnell, II, Esq., Carmody & Torrance LLP, 50 Leavenworth Street, Waterbury, CT 06702.

The respondent was represented by Jacek I. Smigelski, Esq., Attorney At Law, 122 Main Street, New Britain, CT 06051.

These Petitions for Review from the April 19, 2007 Memorandum of Decision Re: Motion to Dismiss and May 10, 2007 Ruling on Motion to Submit Additional Evidence and For Additional Findings were heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this matter owns a single member limited liability company and moved to dismiss the claim filed against his firm on the grounds the Commission lacked subject matter jurisdiction due to deficient notice. The trial commissioner rejected the respondent’s argument that a claim served on the principal of a limited liability company was inadequate pursuant to § 31-294c C.G.S. when the claimant worked for the limited liability company. The respondent has appealed the denial of his motion to dismiss, and continues to assert there is a lack of subject matter jurisdiction. We find this argument futile as our precedent stands for the precisely opposite conclusion. Therefore we affirm the trial commissioner and dismiss the respondent’s appeal.

An injury at a construction site on February 7, 2006 initiated this situation. That day, the claimant, Andrzej Antos fell off a ladder and suffered foot and ankle injuries. On April 17, 2006 the Commission received a Form 30C naming the claimant’s employer as “Jaroslaw Kworek d/b/a Jerry’s Home Improvement.” On April 27, 2006 a Form 43 was received by the Commission contesting the claim. The Form 43 listed the respondent as “Jerry’s Home Improvement, LLC.”

Approximately a year later, on March 26, 2007, the respondent filed a Motion to Dismiss the claim, arguing that by identifying the respondent as “Jerry’s Home Improvement” and not “Jerry’s Home Improvement, LLC” the claimant had filed a deficient Form 30C that failed to confer subject matter jurisdiction on the Commission. The claimant filed a timely objection to this motion and the trial commissioner held a hearing April 17, 2007 on whether to dismiss the claim. The trial commissioner issued a written memorandum of decision on April 19, 2007 denying the respondent’s motion. The trial commissioner found that the limited liability company had the same address at 56 Weybossett Street, Shelton, CT as the firm’s principal and that Mr. Kworek was “the principal, owner or managing partner of whichever entity one chooses to accept.” As the trial commissioner found “it cannot be denied that the employer in this case was aware of Claimant’s injury and had timely notice and ample time to investigate the injury and the circumstances causing the injury” he denied the Motion to Dismiss.

The trial commissioner denied a post-hearing motion by the respondent to admit additional evidence.1 The respondent has appealed the denial of the Ruling on the Motion to Submit Additional Evidence and For Additional Findings and the Memorandum of Decision denying the Motion to Dismiss.

We note that subject matter jurisdiction can be challenged at any time in a proceeding, Del Toro v. Stamford, 270 Conn. 532 (2004), and that the respondent had the legal right to challenge the claim more than a year after its filing. We do not find these jurisdictional claims meritorious, however.

Our review of the legal standards for determining whether notice confers jurisdiction indicates that we have already been presented with the precise issue before this Commission, and decided it in a manner adverse to the respondent. In Rourke v. Summit Tree Service L.L.C., 4297 CRB-8-00-9 (August 22, 2001) the respondent appealed a Motion to Preclude granted when a notice of claim was served on the employer’s principal but omitted the term “L.L.C.” Citing Chase v. Department of Motor Vehicles, 45 Conn. App. 499 (1997), we held there was no error for the following proposition:

“. . . the defects in the claimant’s Form 30C were minimal, and should not have had any impact on the employer’s ability to investigate the claim. In a one-man operation such as the respondent’s business, the distinction between ‘Summit Tree Service’ and ‘Summitt Tree Service, L.L.C.’ is so minor that it is unlikely Schoendorf would have even noticed the distinction had he opened the claimant’s notice upon receiving it. In Chase, supra, the claimant sent his notice of claim to the ‘Department of Motor Vehicles’ rather than to the ‘State of Connecticut, Department of Motor Vehicles.’ Relying on a similar incident in Pereira, supra, the Appellate Court held that this omission was not legally significant. Chase, supra, 504-505. The alleged error here is even more subtle, and has no legal consequence.”

We believe that Rourke must be extended the effect of stare decisis.

“Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).”

Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840, 854-855 (2007). The cases cited by the respondent that were determined since we issued Rourke do not limit or modify this precedent.

The respondent seems to rely solely on the holding of Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003) that a failure of notice can deprive this Commission of jurisdiction. We are puzzled at how this case applies to a situation when the respondent received notice and filed a Form 43 contesting the claim. We explained in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) that Kuehl does not compel a claim to be dismissed when the respondent asserts a technical deficiency in an otherwise timely notice, citing as authority Tardy v. Abington Constructors, Inc., 4105 CRB-2-99-8 (October 30, 2000), aff’d, 71 Conn. App. 140 (2002).2

Therefore, our reading of the Kuehl and Tardy cases is that there must be either a complete absence of notice to warrant dismissal of a claim or granting preclusion; or notice which was so fundamentally deficient as to prejudice the other party. This is consistent with the plain language of § 31-294c(c) C.G.S. “[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice.” Berry, supra.

The trial commissioner in this matter did not find that the respondent was prejudiced by the form of the notice lacking the term “L.L.C.” This factual finding is supported by the facts on the record, most notably, service of the claim on the firm’s principal and his filing of a timely disclaimer to the claim. It also is consistent with the statutory obligations of a member of a limited liability company under Connecticut law. We refer to § 34-132 (a) C.G.S.

Sec. 34-132. Limited liability company charged with notice to or knowledge of any member or manager. (a) Except as provided in subsection (b) of this section, notice to any member of any matter relating to the business or affairs of the limited liability company, and the knowledge of the member acting in the particular matter, acquired while a member or known at the time of becoming a member, and the knowledge of any other member who reasonably could and should have communicated it to the acting member, operate as notice to or knowledge of the limited liability company, except in the case of a fraud on the limited liability company committed by or with the consent of that member.

The plain meaning of this statute (as per § 1-2z C.G.S.) is that any notice received by the member or manager of a limited liability company constitutes notice as against the limited liability company itself. Therefore, by operation of law, any information obtained by Mr. Kworek regarding the instant claim constitutes notice on his limited liability company. The legal arguments advanced in this appeal are specifically barred by the very statutes that permitted Mr. Kworek to conduct his business as a limited liability company.3

We affirm the trial commissioner’s decision in this matter as it is fully supported by uncontroverted evidence, statutory law, and appellate precedent, and consequently dismiss this appeal.

Commissioners Scott A. Barton and Stephen B. Delaney concur in this opinion.

1 We affirm the trial commissioner’s decision on this motion as there is no credible argument that this evidence could not have been presented at the original hearing, therefore pursuant to Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001), the commissioner could decline to admit this evidence. BACK TO TEXT

2 In Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525, 537 (2003), the Supreme Court discussed the savings clause under § 31-294c C.G.S. and determined “it does not excuse, however, the failure to file a notice of claim.” (Emphasis in original). We declined in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007), to apply Kuehl, supra, to a timely but vague claim for benefits. BACK TO TEXT

3 This standard is similar to the standard that an insurer is barred from asserting it is ignorant of facts known to the respondent which it insures. See Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), citing § 31-287 C.G.S. BACK TO TEXT