Rubis et al v. Hartford Fire Insurance Company

Filing 122

ORDER granting re 62 MOTION for Reconsideration re 53 Order on Motion to Dismiss filed by David S. Evans. Signed by Judge Warren W. Eginton on 1/15/2013. (Ghilardi, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUBIS et al.,
Plaintiffs,
v.
HARTFORD FIRE INSURANCE,
Defendant.

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3:11cv796 (WWE)

ORDER ON MOTION FOR RECONSIDERATION
In this action, plaintiff David Evans alleged wrongful discharge in violation of public
policy, wrongful discharge in violation of the implied covenant of good faith and fair dealing
and violation of the state anti-retaliation statute, Conn. Gen. Stat. § 31-51q.
In a prior ruling, this Court granted a motion to dismiss the claims of wrongful
discharge in violation of public policy and wrongful discharge in violation of the implied
covenant of good faith and fair dealing on the basis that such common law claims were
preempted by the exclusive remedy provided by section 31-51m.
Upon review, the Court will grant the motion for reconsideration. The Court will
vacate its decision and allow plaintiff to plead his claim of wrongful discharge in the
alternative.
Discussion
A motion for reconsideration may be based solely upon “matters or controlling
decisions which counsel believes the Court overlooked in the initial decision or order.”
Local R. Civ. P. 7(c)(1). Such a motion should be granted only where the Court has
overlooked facts or precedents which might have “materially influenced” the earlier
decision. Park South Tenants Corp. v. 200 Cent. Park South Assocs. L.P., 754 F.
Supp. 352, 354 (S.D.N.Y. 1991). The movant’s burden is made weighty to avoid

“wasteful repetition of arguments already briefed, considered and decided.” Weissman
v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y. 1989).
In granting the motion to dismiss, this Court relied upon Burnham v. Karl & Gelb,
P.C., 252 Conn. 153 (2000), which held that plaintiff could not claim discharge in
violation of public policy where a statute on which the claimed public policy was
premised provided plaintiff a remedy. Section 31-51m of the Connecticut General
Statutes protects whistleblowers by providing, in relevant part:
No employer shall discharge, discipline or otherwise penalize any employee
because the employee . . . reports, verbally or in writing, a violation or a
suspected violation of any state or federal law or regulation or any municipal
ordinance or regulation to a public body, or because an employee is requested
by a public body to participate in an investigation, hearing or inquiry held by that
public body, or a court action. . . . The provisions of this subsection shall not be
applicable when the employee knows such report is false.
Plaintiff’s wrongful discharge allegations assert retaliation for his internal reports
to management, external reports to the Attorney General’s Office and the Insurance
Department about defendant’s insurance practices, and his deposition about labor rates
and other insurance practices as part of litigation brought by the Auto Body Association
of Connecticut.
Section 31-51m does not protect him from retaliation for his internal reports.
However, this Court interpreted Burnham to provide that section 31-51m preempts
common law wrongful discharge actions even when the elements of the statute are not
met. The Court now reconsiders its analysis of Burnham.
In Burnham, plaintiff alleged that she was terminated for reporting her employer’s
unsafe dental practices that violated the Occupational Safety and Health Act of 1970
(“OSHA”) to a dental association. She asserted her wrongful discharge claim based on
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the public policy against retaliatory discharges embodied in section 31-51m. The
Connecticut Supreme Court issued three holdings. First, it held that plaintiff had not
raised a material fact that she had reported to a public body as required by section 3151m, and therefore, she could not use the public policy of section 31-51m to support
her claim of wrongful discharge in violation of public policy. The Court went on to an
alternative holding––assuming that the plaintiff’s termination violated the public policy of
section 31-51m––that her claim would be preempted by the statutory remedy provided
by section 31-51m. Third, the Court held that plaintiff’s state wrongful discharge claim
was preempted even though the plaintiff had not reported to a public body and could
not have brought a section 31-51m claim because she had a remedy for her
whistleblowing pursuant to the OSHA.
This Court now finds that it interpreted Burnham too broadly when it stated that
“section 31-51m preempts common law wrongful discharge actions even when
elements of the statute are not met.” As observed by Volles v. Knapp Neurosciences,
2010 WL 8746911 (D. Conn. 2010), “it is not at all clear that section 31-51m was
intended by the legislature to preempt all common law claims for wrongful termination
based on public policy when an employee does not complain outside of her own
employer.” In light of the lack of clarity of the current law, the Court will allow plaintiff to
plead his claim of wrongful discharge in the alternative. On summary judgment,
defendant may renew its argument that plaintiff’s claim of wrongful discharge is
preempted.

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CONCLUSION
For the foregoing reasons, defendant’s motion for reconsideration [doc. #62] is
GRANTED. Upon review, the Court hereby VACATES its prior decision granting the
motion to dismiss [doc. #53].

________/s/__________________
Warren W. Eginton
Senior U.S District Judge

Dated this 15th day of January 2013, at Bridgeport, Connecticut.

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