Nordstrom v. GAB Robins NA Inc

Filing 120

ORDER denying 103 Motion for Summary Judgment. Signed by Judge Robert N. Chatigny on 3/31/12. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MELISSA NORDSTROM,

:

Plaintiff,

:

V.

:

CASE NO. 3:09-CV-771 (RNC)

GAB ROBINS NORTH AMERICA, INC., :
Defendant.

:
RULING AND ORDER

Plaintiff brings this diversity case seeking damages for
negligent and intentional infliction of emotional distress.
Defendant has moved for summary judgment on the grounds that (1)
diversity jurisdiction is lacking, (2) the claims in the
complaint are barred by the exclusivity provision of
Connecticut’s Workers’ Compensation Act (“CWCA”), Conn. Gen.
Stat. § 31-284(a), and (3) plaintiff lacks admissible evidence of
medical treatment to support her claim for intentional infliction
of emotional distress.

For reasons that follow, the motion for

summary judgment is denied.1
I. Legal Standard
Summary judgment may be granted when there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

1

To avoid

Defendant’s motion for summary judgment does not
challenge plaintiff’s ability to prove the elements of her claim
for negligent infliction of emotional distress and, accordingly,
that claim is not addressed in this ruling.
1

summary judgment, the plaintiff must point to evidence that would
permit a jury to return a verdict in her favor.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
II.

Facts
The record, viewed most favorably to the plaintiff, shows

the following.

Frederick Nordstrom, an employee of the

Connecticut Department of Correction (“DOC”), injured his back in
the course of his employment on September 28, 2006, and filed a
claim for workers’ compensation with the State of Connecticut
Workers’ Compensation Commission.

His claim is administered by

defendant GAB Robins North America, Inc. under a contract with
the DOC.

Defendant has contested the claim and conducted an

investigation, which has included surveillance of the claimant
and his family.
Plaintiff is married to Mr. Nordstrom.

Starting in May

2008, defendant’s agents followed, photographed and videotaped
the plaintiff.

On one occasion, she was followed aggressively

while driving with her daughter and grandfather.

Plaintiff

describes this incident as a high speed chase, which reached
speeds in excess of 80 miles per hour.

A few days later,

plaintiff and her family left for a camping trip in Rhode Island.
An agent of the defendant followed them to the campsite and took
pictures of the group.

Over the next several months, defendant’s

personnel conducted surveillance of the plaintiff’s home.

2

The

surveillance caused her emotional distress.

She complained to

her mental health counselor that being followed had caused her
anxiety and she was prescribed medication.
III.

Legal Analysis

A.

The Court Has Diversity Jurisdiction

District courts have jurisdiction of actions under state law
between citizens of different states provided the amount in
controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1).

Under the

test of corporate citizenship set forth in the governing statute,
a corporation is deemed to be a citizen of the state in which it
is incorporated and the state where it has its principal place of
business.

28 U.S.C. § 1332(c)(1).

It is undisputed that the plaintiff is a citizen of
Connecticut.

The complaint alleges that the defendant is a

Delaware corporation with its principal place of business in New
Jersey.

Defendant has neither admitted nor denied these

allegations.

Instead, it argues that it should be deemed a

citizen of Connecticut for purposes of diversity jurisdiction on
the ground that, in investigating Mr. Nordstom’s compensation
claim, it stands in the shoes of the DOC.2

2

The defendant’s argument is premised on the definition of
“employer” in Connecticut’s Workers’ Compensation Act (“CWCA”),
Conn. Gen. Stat. § 31-275(10), which states in relevant part:
“‘Employer’ means any person, corporation, limited liability
company, firm, partnership, voluntary association, joint stock
association, the state and any public corporation within the
state using the services of one or more employees for pay, or the
3

Defendant’s argument is unavailing.

This Court has

jurisdiction unless the defendant is a citizen of Connecticut
under the diversity statute.

Defendant’s argument based on its

relationship with the DOC implicitly concedes that it cannot be
deemed a citizen of Connecticut under the diversity statute’s
test of corporate citizenship.

I conclude, therefore, that the

statutory requirements governing diversity jurisdiction are
satisfied.
No authority has been cited by the defendant for the
proposition that when the statutory requirements for diversity
jurisdiction are met, diversity jurisdiction may yet be lacking.
Moreover, defendant’s argument erroneously assumes that the DOC
is a citizen of Connecticut under the diversity statute.
is an arm of the state.

The DOC

See Alter and Associates v. Lantz, 90

Conn. App. 15 (2005)(sovereign immunity barred action against
DOC); see also Paragon Construction Co. v. Department of Public
Works, 130 Conn. App. 211, 225 (2011).

As such, it is not a

citizen of the state for purposes of diversity jurisdiction.

See

Moor v. County of Alameda, 411 U.S. 693, 717-21 (listing factors
to consider in determining whether a state agency is an arm of
the state, and thus not a citizen, or an independent entity).

legal representative of any such employer . . . .” Defendant
contends that it is the “legal representative” of the DOC.
4

B. Workers’ Compensation Exclusivity Has Not Been Established
The CWCA’s exclusivity provision protects employers from
liability for damages “on account of personal injury sustained by
an employee arising out of and in the course of employment.”
Conn. Gen. Stat. § 31-284(a).

Defendant’s argument that

plaintiff’s claim is covered by the exclusivity provision relies
primarily on two cases: DeOliveira v. Liberty Mutual Insurance
Co., 273 Conn. 487 (2005), and Almada v. Wausau Business
Insurance Co., 274 Conn. 449 (2005).

Both are clearly

distinguishable.
In DeOliveira, the Connecticut Supreme Court held that the
exclusivity provision applied to a claim that benefit payments
were delayed in bad faith.

Treating the issue as one of

statutory interpretation, the Court looked for evidence that the
legislature intended such claims to be handled by the Commission.
The Court observed that General Statutes 31-278, 31-288(b), 31300 and 31-303 authorize the Commissioner to provide financial
remedies to reimburse an employee for costs associated with
unwarranted delay in receipt of compensation payments.
at 497.

273 Conn.

The presence of these administrative remedies in the

statute was viewed as strong evidence that the legislature
intended them to provide the exclusive remedy available to the
plaintiff.

Id. at 499.

In Almada, the plaintiff was receiving workers’ compensation

5

benefits as a dependent of her deceased husband.

She brought a

claim for negligent infliction of emotional distress against the
workers’ compensation carrier based on its failure to add costof-living adjustments to her benefits.

The Court applied

DeOliveira and concluded that the claim was barred by the
exclusivity provision.
Both DeOliveira and Almada involved allegations of
wrongdoing in the workers’ compensation payment process, for
which remedies are provided in the CWCA.

The defendant

identifies no provision of the CWCA that provides an
administrative penalty for surveillance resulting in emotional
distress.

In the absence of such a statutory provision, it is

difficult to conclude that the legislature intended the
Commission to have exclusive jurisdiction over the plaintiff’s
claim.

It could be argued that the Commission should have

jurisdiction because the alleged injury grew out of a
compensation claim.

But neither DeOliveira or Almada goes that

far and it seems unlikely the Connecticut Supreme Court would
construe the CWCA in such a sweeping manner.

See 6 Larson’s

Workers’ Compensation Law, § 104.059[2] at 104-27 (2011)(“Plainly
the existence of a compensation claim does not give insurers or
employers a blanket exemption from the entire law of tort.”).
Even assuming the Commission has jurisdiction over a
spouse’s claim for emotional distress stemming from an employer’s

6

investigative activity, plaintiff disputes that the surveillance
at issue was part of the investigation of her husband’s
compensation claim.

According to the plaintiff, she was

subjected to harassment independent of the investigation of her
husband.

The defendant responds that any surveillance of the

plaintiff was incidental to attempted surveillance of her
husband.

But the defendant has not carried its burden of

demonstrating that a jury would have to resolve this factual
issue in its favor.3
C.

Plaintiff Has Evidence of Medical Treatment
The defendant argues that plaintiff cannot prevail on her

claim for intentional infliction of emotional distress because
she has not presented medical evidence and has no medical
expenses caused by the defendant’s alleged misconduct.4

Under

Connecticut law, intentional infliction of emotional distress has
four elements: (1) the actor intended to inflict emotional
distress or knew or should have known emotional distress was a
likely result of his conduct; (2) the conduct was extreme and

3

The existence of this factual dispute makes the case
unsuitable for certification to the Connecticut Supreme Court and
the defendant’s request for certification is therefore denied.
4

In a previous motion to dismiss, the defendant argued that
the plaintiff had not adequately pleaded the other elements of a
claim for intentional infliction of emotional distress. It does
not renew those arguments here, instead addressing only the
plaintiff’s failure to provide medical evidence or evidence of
medical expenses.
7

outrageous; (3) the conduct was the cause of the plaintiff's
distress and (4) the emotional distress sustained by the
plaintiff was severe.
(1986).

Petyan v. Ellis, 200 Conn. 243, 253

Only the fourth element has been placed in issue here.5

Emotional distress is “severe” when it is so extreme no
reasonable person could be expected to endure it.

Almonte v.

Coca-Cola Bottling Co. of N.Y., Inc., 959 F. Supp. 569 (D. Conn.
1997)(citing Mellaly v. Eastman Kodak, 597 A.2d 846, 848 (Conn.
Super. Ct. 1991)).

It is not clear that failure to seek medical

treatment precludes a finding of severity under Connecticut law.
Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 175 (D. Conn.
2003).

However, “merely alleging 'extreme emotional distress'”

without supporting factual allegations is legally insufficient to
support a claim of intentional infliction of emotional distress.
Bloom v. Town of Stratford, No. 3:05-CV-217 (PCD), 2006 WL
3388396, at *15 (D. Conn. Nov. 16, 2006)(citing Macdonald v.

5

Defendant claims to challenge the third element as well
but does not make any arguments about causation. With regard to
the other elements, a reasonable jury could find that the
defendant was intentionally harassing the plaintiff in order to
pressure her husband to abandon his workers’ compensation claim.
Whether the conduct alleged is sufficiently outrageous is a close
question given that the plaintiff was aware that her husband was
being surveilled as part of his workers’ compensation claim.
However, even legitimate surveillance can be conducted in such a
way as to constitute outrageous conduct. See Bosco v. MacDonald,
No. 094078, 1995 WL 43763, at *2-3 (Conn. Super. Ct. Jan. 31,
1995). To the degree that this conduct poses a close question, I
need not decide it as it is not raised in the motion for summary
judgment.
8

Howard, No. CV000176368S, 2000 WL 1687119, at *1 (Conn. Super.
Ct. Oct. 17, 2000)).

When a plaintiff's deposition testimony

contains only conclusory statements of severe distress, and the
plaintiff has not submitted evidence of medical treatment, courts
have granted summary judgment in the defendant's favor.

See,

e.g., Reed v. Signode Corp., 652 F. Supp. 129, 137 (D. Conn.
1986)(plaintiff's testimony that defendant's actions were
“distressing” and “implie[d] incompetence” was insufficient when
plaintiff did not seek medical assistance.); Bloom, 2006 WL
3388396, at *15 (plaintiff's testimony that he was “severely
injured and embarrassed” was insufficient.).
Plaintiff's allegations of severe distress are conclusory.
She has testified that at various times during defendant's
surveillance, she was “going crazy,” Pl. Dep. at 63, was “a
nervous wreck,” Pl. Dep. at 82, and was “really worried about
it.” Pl. Dep. at 84.

These expressions are substantially

synonymous with “severely distressed.”

As such, they are

insufficient to prove that the distress plaintiff claims to have
suffered was severe.
Though plaintiff's deposition testimony is insufficient to
support her claim, a jury could find that she did seek treatment
for anxiety caused by defendant's surveillance.

In her

memorandum in opposition to defendant's motion for summary
judgment, plaintiff cites deposition testimony by Alice Harding,

9

APRN, and Lois Panikoff, MSW.

These witnesses testified that in

the spring of 2009, plaintiff complained of anxiety caused by
being followed and was prescribed medication.

Dep. of Alice

Harding at 16, 23-25; Dep. of Lois Panikoff at 27-29.
Defendant correctly points out that these visits occurred
approximately one year after the “high speed chase” and around
the time plaintiff began to prepare this lawsuit.

Defendant also

notes that plaintiff had visited Lois Panikoff several times
between the chase and the April 2009 visit, but had not mentioned
being followed.

These facts bear on plaintiff's credibility,

which is properly assessed by a jury.

They do not preclude a

jury finding that plaintiff required medical treatment for her
emotional distress.
Defendant contends that plaintiff cannot support her
assertions with evidence from these depositions because she
repeatedly stated in her pleadings that she had not sought
medical treatment nor incurred medical expenses.
indeed contradicted herself.

Plaintiff has

Her complaint pleads, “the

plaintiff has suffered severe emotional distress requiring
medical attention,” while her memorandum in opposition to
defendant's motion to compel declares, “plaintiff has filed a
damages analysis in which she specifically states that she has
not received any treatment for her emotional distress and will
not be offering any medical evidence regarding same.”

10

However,

defendant cites no authority, and none has been found, permitting
a court to ignore record evidence cited in opposition to summary
judgment if the party citing the evidence previously stated in a
pleading that it had no such evidence.

Precluding a party from

relying on such evidence might well be appropriate to avoid undue
prejudice.

But I see no undue prejudice to the defendant here.

III. Conclusion
Accordingly, the defendant’s motion for summary judgment
(doc. 103) is hereby denied.
So ordered this 31st day of March 2012.

/s/ RNC
Robert N. Chatigny
United States District Judge

11