Middlesex Mutual Assurance Company v. Perkins, No. 76468 (Aug. 8, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (COUNT TWOONLY) The subject action is one for declaratory judgment brought by the plaintiff as against two individual defendants, Walter Perkins and Henry Fox. The motion for summary judgment pending before this court is directed as to count two of the underlying complaint only as its allegations are directed to the defendant Henry Fox. The movant, Henry Fox, filed a factual affidavit and memorandum of law pursuant to the rules and the plaintiff, Middlesex Mutual Assurance Company, filed only a memorandum of law with no counter affidavit.

The underlying incident is an assault that took place wherein the defendant Perkins assaulted the defendant Fox and that incident is the subject of a lawsuit by Fox against Perkins pending in Superior Court in New Haven County. In accordance with the only affidavit filed, this court finds that at the time of the alleged incident the defendant Fox was on his lunch hour and that any activities connected with the New Haven lawsuit happened while the defendant Fox was not working and not in the course of his employment with their common employer. The defendant Perkins was also a co-employee.

Fox sued Perkins in the New Haven action in an two count complaint, the first count alleging intentional assault and the second count alleging a cause of action based on negligence on the part of the defendant Perkins. The plaintiff in this action, Middlesex Mutual Assurance Company, attempts to come before this court and establish that the cause of action pending in New Haven is a Workers Compensation matter and therefore not triable in the CT Page 5261-B common law court. That contention is without merit. There is no Workers Compensation defense filed by the defendant Perkins in connection with his defense of the assault action in New Haven County and there is no merit to the contention of the plaintiff herein Middlesex Mutual Assurance Company that it should not be required to defend the defendant Perkins at least in connection with count two, the negligence count, in the New Haven action.

For the foregoing reasons the motion for summary judgment herein as to count two of the pending complaint is granted.

Judgment is entered in accordance with the foregoing.

HIGGINS, J.