text:
    Anthony Panaro et al. v. Electrolux Corporation et al.
    (13402)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued May 11
    decision released August 16, 1988

      Daniel A. Benjamin, with whom, on the brief, was Stephen Gates, for the appellants (named plaintiff et al.).

      Garie J. Mulcahey, with whom, on the brief, was Arnold J. Bai, for the appellee (defendant Mary Ann Sheehan).
   Arthur H. Healey, J.

The sole issue on this appeal is whether the defendant Mary Ann Sheehan, a full-time salaried company nurse, has the status of an independent contractor at her place of employment and therefore may be sued by a fellow employee despite the exclusivity provisions of the Workers’ Compensation Act. General Statutes § 31-275 et seq. The named plaintiff, Anthony Panaro, brought an action for malpractice against his employer, the Electrolux Corporation (Electrolux), the named defendant, and the defendant Sheehan, a nurse employed by Electrolux. The plaintiffs alleged that Sheehan’s failure to exercise reasonable professional care increased the severity and risk of harm of a stroke that Panaro suffered at the Electrolux facility. The trial court, Lewis, J., granted the defendants’ motion for summary judgment, concluding that the plaintiffs’ “sole and exclusive remedy against Electrolux and Nurse Sheehan is the statutory proceeding of the Workers’ Compensation Act.” We find no error.

The complaint, documents, pleadings and affidavits, viewed in the light most favorable to the plaintiffs, reveal the following. Electrolux operated an industrial manufacturing business in Old Greenwich. The defendant Sheehan, a licensed, registered nurse, was hired by Electrolux in October, 1962, to serve as an industrial nurse at its medical facility located at the business. Under the direction of Joel Blumberg, the company physician, and William Blois, the director of human resources, the company medical facility served over 1200 Electrolux employees. The facility was maintained solely for the benefit of its employees. Sheehan worked forty hours a week, received a salary and fringe benefits, and her paycheck was subject to withholding for federal income tax and social security like that of any other regular full-time employee at Electrolux.

The plaintiffs’ amended complaint alleged that at approximately 8:15 a.m. on May 12,1983, Panaro bent down to lift and carry a thirty-pound box of pieces to a conveyor belt. He became “dizzy, foggy, sweaty and disorganized” and then proceeded to the company medical facility. The defendant Sheehan took Panaro’s blood pressure, noticed his “dizzied” and disorganized state and had him rest for approximately one hour. Panaro was then sent back to work by Sheehan and, at approximately 3:30 p.m., was found slumped over a chair. Panaro was taken back to the medical facility and Sheehan then sent him to Stamford Hospital by company car. There he was diagnosed as having suffered a cerebrovascular accident, a stroke. Panaro alleges that he suffered various permanent injuries commonly associated with a stroke including brain damage, slurred speech, blurred vision, and muscular weaknesses throughout his body. Panaro was awarded compensation under the Workers’ Compensation Act by a finding and award dated March 25, 1986. After the institution of this action, the defendants Electrolux and Sheehan pleaded a special defense that the suit was barred by General Statutes § 31-284 (a) and General Statutes § 31-293a, the exclusivity provisions of the Workers’ Compensation Act. The trial court granted the defendants’ motion for summary judgment, opining that Connecticut would follow the majority rule, which rejects the dual capacity doctrine, and determining therefore the plaintiffs’ exclusive and sole remedy against the defendants is the statutory proceeding of the Workers’ Compensation Act.

On appeal, the plaintiffs claim that the trial court erred in rejecting the dual capacity doctrine by refusing to recognize that Sheehan, as a company nurse, could be an independent contractor as to one part of her service and an employee as to another part of her service and therefore fall outside the fellow employee rule of the Workers’ Compensation Act. We agree with the ruling of the trial court.

The dual capacity or independent contractor doctrine has never been addressed by this court in the context of workers’ compensation. The doctrine was first announced in Duprey v. Shane, 39 Cal. 2d 781, 793, 249 P.2d 8 (1952), where the California Supreme Court permitted a nurse, who worked for a chiropractic partnership, to bring a medical malpractice claim against her employer after she had been injured in the course of her employment and allegedly had received negligent treatment from one of the partner physicians. The court found that a relationship of physician/patient had arisen in addition to that of employer/employee. This separate and distinct relationship gave rise to a duty, the breach of which permitted an action of malpractice. Id.; see also D’Angona v. County of Los Angeles, 27 Cal. 3d 661, 669, 613 P.2d 238, 166 Cal. Rptr. 177 (1980); Hoffman v. Rogers, 22 Cal. App. 3d 655, 662, 99 Cal. Rptr. 455 (1972); but see Dixon v. Ford Motor Co., 53 Cal. App. 3d 499, 507, 125 Cal. Rptr. 872 (1975) (noting the refusal of several cases to extend the rationale of Duprey v. Shane, supra, to different factual contexts). More recently, the reach of the dual capacity doctrine in California has been limited by its legislature. Cal. Lab. Code § 3602 (Deering 1988).

A number of other jurisdictions have adopted the dual capacity or independent contractor doctrine in some form. See, e.g., Wright v. District Court, 661 P.2d 1167, 1171 (Colo. 1983) (a company physician is an independent contractor); McDaniel v. Sage, 419 N.E.2d 1322, 1326 (Ind. App. 1981) (a nurse is liable as an independent contractor); Guy v. Thomas Co., 55 Ohio St. 2d 183, 190, 378 N.E.2d 488 (1978) (a hospital that has dual capacity as employer and health provider is liable to employee); Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 256, 439 A.2d 1162 (1982) (Roberts, J., concurring) (a hospital that has dual capacity as employer and health provider is liable to employee); but cf. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn. 1977); see also annot., 23 A.L.R.4th 1151, 1156 (1983); comment, “The Dual Capacity Doctrine: Piercing the Exclusive Remedy of Workers’ Compensation,” 43 U. Pitt. L. Rev. 1013, 1026-28 (1982) (survey of case law). Not all of the decisions cited above, however, concern the fact pattern present in the instant case: a claim of negligence against a full-time company nurse employed at a company facility other than a hospital. Some courts have held that company doctors should be treated differently from other fellow employees and be held liable for negligent treatment at the workplace. See, e.g., Wright v. District Court, supra. Other courts have permitted negligence claims against a doctor who serves the company as an independent contractor. See, e.g., Gay v. Greene, 91 Ga. App. 78, 81, 84 S.E.2d 847 (1954); McKelvy v. Barber, 381 S.W.2d 59, 63 (Tex. 1964). The company physicians in those cases were not regular company employees but received a fee for services rendered. In other jurisdictions, it is the fact that hospital employees were involved that permitted liability against health care providers who employ them. See, e.g., Guy v. Thomas Co., supra; Tatrai v. Presbyterian University Hospital, supra. The logic of these decisions rests on the premise that a health care facility that is open to the public should not be shielded from liability simply because the patient it treats negligently happens to be one of its employees who is injured on the job.

The only case cited by the plaintiffs that actually holds that a company nurse at a facility other than a hospital can be sued for negligence is McDaniel v. Sage, supra. There a company nurse, who faced allegations of negligence in administering an injection, was not able to use the fellow employee rule of the Workmen’s Compensation Act to preclude an action against her. Id., 1326. The court held that a licensed registered nurse was engaged in an “independent profession” and “relied on her training, experience and skill as a professional . . . .” Id., 1325-26. The court concluded that the nurse’s liability arose from her nurse/patient relationship and not from an employer/employee relationship, and therefore that the nurse was an independent contractor. Id., 1326.

A greater number of jurisdictions, however, have rejected the dual capacity or independent contractor doctrine for alleged negligence by company physicians and nurses. See, e.g., Young v. St. Elizabeth Hospital, 131 Ill. App. 3d 193, 196, 475 N.E.2d 603 (1985); Jones v. General Motors Corporation, 136 Mich. App. 251, 257-58, 355 N.W.2d 646 (1984); Boyle v. Breme, 187 N.J. Super. 129, 132, 453 A.2d 1335 (1982); Garcia v. Iserson, 33 N.Y.2d 421, 422-23, 309 N.E.2d 420, 353 N.Y.S. 955 (1974); Proctor v. Ford Motor Co., 36 Ohio St. 2d 3, 6, 302 N.E.2d 580 (1973); Babich v. Pavich, 270 Pa. Super. 140, 145, 411 A.2d 218 (1979). Even before the legislature narrowed the dual capacity doctrine, courts in California limited Duprey v. Shane to its facts. In Dixon v. Ford Motor Co., supra, the court refused to hold an employer, its company nurse and its orderly liable for negligent treatment of an employee. The court noted that Duprey was “unique because the employer happened to be a doctor.” Id., 507. Other jurisdictions refuse to hold the employer liable for negligent actions by company physicians. See, e.g., Warwick v. Hudson Pulp & Paper Co., 303 So. 2d 701, 703 (Fla. App. 1974); Trotter v. Litton Systems, Inc., 370 So. 2d 244, 247 (Miss. 1979).

The reasons given for rejecting the dual capacity or independent contractor theory are varied but include the fact that company health providers are bona fide regular employees, who have annual salaries, fixed hours and work under the employer’s supervision; see, e.g., Babich v. Pavich, supra; that the health providers are furthering the primary business interests of the employer; see, e.g., Proctor v. Ford Motor Co., supra; that the health service is limited to employees and not the general public; see, e.g., Garcia v. Iserson, supra, 423; and that carving out exceptions to a workers’ compensation act is a legislative function. See, e.g., Boyle v. Breme, supra, 133. The decision of the Indiana court in McDaniel v. Sage, supra, was severely criticized by a leading authority in the field of workers’ compensation as follows: “The short answer to the Indiana approach is that company doctors, and nurses, like salaried lawyers, interns, and other professional persons, are now routinely held to be employees for purposes of compensation benefits, and it is unthinkable that a legislature should intend that a given person should be an employee under the act for one purpose and an independent contractor for another.” 2A A. Larson, Workmen’s Compensation Law (1983) § 72.61 (b), pp. 14-228.48-228.49.

Although the weight of authority therefore supports Sheehan’s position, we now must look to our own Workers’ Compensation Act and the cases interpreting it. General Statutes § 31-293a provides that the right to compensation “shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee.” The only exceptions, specifically set out in § 31-293a, are a wilful or malicious wrong or an action based on a fellow employee’s operation of a motor vehicle. An “employee,” as defined in General Statutes § 31-275, is “any person who has entered into or works under any contract of service or apprenticeship with an employer . . . .” “The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The Workers’ Compensation Act “ compromise^] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); see also 81 Am. Jur. 2d, Workmen’s Compensation § 2 (1976); 2A A. Larson, supra, § 72.61, p. 14-228.49; A. Larson, “The Nature and Origins of Workmen’s Compensation,” 37 Cornell L.Q. 206 (1952). Therefore, “[t]he act provides the exclusive remedy to employees sustaining work related injuries or death from such injuries ‘caused by the negligence or wrong of a fellow employee . . . .’ General Statutes § 31-293a.” Mingachos v. CBS, Inc., supra, 113; see Sullivan v. State, 189 Conn. 550, 558, 457 A.2d 304 (1983); Morin v. Lemieux, 179 Conn. 501, 503, 427 A.2d 397 (1980). Under the plain meaning of the statute and the cases interpreting it, there is no right to bring a direct action against the defendant Sheehan.

This court, however, has carved out a few exceptions to the exclusivity of the Workers’ Compensation Act provisions. See, e.g., Blancato v. Feldspar Corporation, 203 Conn. 34, 43, 522 A.2d 1235 (1987) (exception for a minor who has been illegally employed); Jett v. Dunlap, supra, 221 (exception for intentional torts committed by an employer). On the other hand, this court refused to extend the Jett exception to include “ ‘accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.’ ” Mingachos v. CBS, Inc., supra, 108, quoting 2A A. Larson, Workmen’s Compensation Law (1976) § 68.13, p. 13-8.

We decline to carve out an additional exception as the plaintiffs suggest. First, we note that both of these exceptions are for employers, not employees. Since one of the purposes of the statutory immunity of a fellow employee is to shield those who are usually unable to satisfy judgments involving serious injuries, exceptions to the immunity from liability at common law for employers, who are generally able to satisfy such judgments, are based on different policy considerations. Further, the employer exceptions have been fashioned for rather egregious circumstances: either for an illegally employed minor or for an intentional tort committed by one employee upon another at the direction of the employer. To this date there has not been a judicially created exception to the exclusivity provisions of the Workers’ Compensation Act for fellow employees. The sole exceptions for employees are set out in General Statutes § 31-293a and are applicable when the injury results from either a wilful or malicious wrong or from the operation of a motor vehicle. The legislative history indicates that the purpose of the fellow employee rule was recognized by the legislature and the exceptions were the result of deliberate consideration of competing policy concerns.

Even if we were inclined to create an exception to the fellow employee rule, the arguments presented by the plaintiffs are not persuasive in the factual circumstances presented in this case. First, Sheehan is a nurse and not a doctor. Part of the rationale for holding a doctor or hospital liable is an ability, due “to higher income and professional liability insurance,” to bear the risk of an industrial accident. Wright v. District Court, supra, 1170. Although the individual defendant in this case had insurance, it is not certain that all such company nurses would have insurance sufficient to cover substantial personal injury verdicts. Second, many of the cases holding health care providers liable involve hospitals or doctors as the employer. See, e.g., D'Angona v. County of Los Angeles, supra; Guy v. Thomas Co., supra; Tatrai v. Presbyterian University Hospital, supra. Not only are these cases an exception to employer immunity from liability, as opposed to an exception to fellow employee immunity from liability, but also those cases rested oh the rationale that there is no basis for distinguishing the treatment of a hospital employee, who is a patient with a compensable injury, from the treatment of any other member of the general public who is also a hospital patient.

Not only can many of the cases from other jurisdictions cited by the plaintiffs be distinguished, but a number of factors relied on by those cases that deny liability for company nurses or physicians are present in this case. First of all, Sheehan is a full-time employee, with regular hours, a salary, benefits and is subject to withholding taxes by her employer. These factors were considered significant in Babich v. Pavich, supra. Other factors, considered important by New York in Garcia v. Iserson, supra, 423, include whether the service was limited to employees and not available to the general public, and whether the employee received health care only as a consequence of his employment. If so, the injured employee was barred from suing a fellow employee by the exclusivity provisions of the act. Id., 424. Both factors are present here: the medical service was limited to employees of Electrolux, and Panaro received such service only as a consequence of his employment. Further, although providing medical service is not the primary business of these employers, such service directly benefits the employee while also furthering the business interest of the employer. In Proctor v. Ford Motor Co., supra, 6, the court recognized that the business of Ford is making cars, “yet to say that its maintenance of a fully-staffed plant medical facility is unrelated to producing cars ignores the reality of modern industrial life.”

The plaintiffs rely heavily on two Connecticut cases that support the concept of a person holding both employee and independent contractor status at the same time. In Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 15 A.2d 17 (1940), we held that, for purposes of state unemployment insurance, a person could simultaneously be a general manager and employee as well as a sales manager and independent contractor under the facts of that case. An examination of certain material facts in Beaverdale Memorial Park, Inc., demonstrates that it is inapposite here. For example, in Beaverdale Memorial Park, Inc., the parties had executed two written contracts. Under one, Eugene A. Sexton was put in charge of the cemetery as general manager, and under the other, he was placed in charge of the selling organization as sales manager. In that case, the salesmen were employed and discharged by Sexton only, were paid individually by his personal check, had no direct dealings with the cemetery corporation or any of its officers, did not work any stated hours but only as Sexton directed, were accountable to no one but Sexton, and their compensation was not controlled by the cemetery corporation or its officers. Id., 180. This factual pattern significantly distinguishes Beaverdale Memorial Park, Inc., from the case before us.

A more recent case, Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), concerned whether a public defender could use the defense of sovereign immunity in a suit for malpractice. This court held that “[a] person may be a contractor as to part of his service and a servant as to another part. Scorpion v. American-Republican, Inc., 131 Conn. 42, 45, 37 A.2d 802 [1944]; Clough v. Estate of Malley, 126 Conn. 379, 382, 11 A.2d 398 [1940].” Id., 574. The court in Spring concluded that “the status of the public defender, once the attorney-client relationship attaches, is that of an independent contractor rather than that of an employee.” Id. It must be recognized that Spring is a sui generis case as there we said that “it is clear as a matter of law that the status of the public defender, once the attorney-client relationship attaches, is that of an independent contractor rather than that of an employee.” (Emphasis added.) Id. It was at that time that his “employer,” i.e., the state, had no more right to interfere with the conduct of his defense than had it been conducted by a privately employed attorney. Id., 575. Although we do not question the logic of Beaverdale Memorial Park, Inc., or Spring, they are inapposite to this case. Moreover, we note that neither case involved workers’ compensation and its complex legislative scheme that balances competing policy concerns, but rather addressed the unrelated topics of sovereign immunity and unemployment insurance. These decisions do not avail the plaintiffs.

The plaintiffs also rely on Spring v. Constantino, supra, for the premise that “ ‘[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and method of work.’ ” Id., 573, quoting Beaverdale Memorial Park, Inc. v. Danaher, supra, 179. The plaintiffs, citing McDaniel v. Sage, supra, argue that Sheehan, as a trained professional, had an independent relationship with her patients and therefore was not under the control of her employer. Although it is reasonable to say that nurses and other professionals, by virtue of their skill and training, are not under the direct supervision of their employers when using their expertise, the plaintiffs’ argument proves too much. Under their reasoning, all employees with skills beyond the knowledge of ordinary supervisors, including those subject to licensing, such as doctors, nurses, engineers and architects, would be subject to tort actions as independent contractors. We decline to follow that reasoning and conclude that the better distinction between employees and independent contractors for workers’ compensation purposes is stated in Spring v. Constantino, supra. There we adopted the following definition of independent contractor: “ ‘one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without subject to the control of his employer, except as to the result of his work.’ ” Id., quoting Alexander v. R.A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912). Clearly, Sheehan in this case does not fall within that definition of independent contractor.

We recognize that the legislature constructed the Workers’ Compensation Act as a compromise between an “employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., supra, 97. “Under typical workers’ compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee’s burden of proof is relatively light, and recovery should be expeditious.” Id. The fellow employee immunity of General Statutes § 31-293a is part of that comprehensive scheme and compromise. Although there have been two judicially created exceptions to employer liability, both arose in the context of egregious circumstances, not simple negligence. There have been no judicially created exceptions for fellow employee liability and for good reason. When it fashioned the fellow employee rule, the legislature provided for two exceptions in the statute and it must be presumed to have rejected other possible exceptions. “ ‘Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.’ ” State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982); The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985). For this court to create an exception to the fellow employee rule for company nurses would “usurp the legislative function.” Mingachos v. CBS, Inc., supra, 106. We recognize that over the years the legislature has worked out a complex statutory scheme in promulgating workers’ compensation statutes and that “[a]n integral part of this complex structure is the accepted proposition that an employee surrenders other claims for the certainty of the exclusive workers’ compensation remedy.” Boyle v. Breme, supra, 132. Such a “comprehensive, well thought out legislative scheme should not be tinkered with by the courts.” Jenkins v. Sabourin, 104 Wis. 2d 309, 323, 311 N.W.2d 600 (1981). As one court recognized, “[a] damage suit as an alternative or additional source of compensation, becomes permissible only by carving a judicial exception in an uncarved statute. . . . Neither moral aversion to the employer’s act nor the shiny prospect of a large damage verdict justifies interference with what is essentially a policy choice of the Legislature.” Azevedo v. Abel, 264 Cal. App. 2d 451, 459, 70 Cal. Rptr. 710 (1968); accord Mingachos v. CBS, Inc., supra, 106. The theme of legislative preeminence in the workers’ compensation area is echoed in many jurisdictions. See, e.g., Herbert v. Gulf States Utilities Co., 369 So. 2d 1104, 1107 (La. App. 1979); Jones v. Bouza, 381 Mich. 299, 302,160 N.W.2d 881 (1968); Trotter v. Litton Systems, Inc., supra, 247; Boyle v. Breme, supra, 133. We decline to create an exception to the fellow employee rule of the Workers’ Compensation Act under the circumstances of this case. Therefore, summary judgment was properly granted by the trial court.

There is no error.

In this opinion the other justices concurred.

       Ruth Panaro, wife of the named plaintiff, Anthony Panaro, is making a claim for loss of consortium.

       General Statutes § 31-284 provides in part: “basic rights and liabilities. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM ENTERING employment contracts, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       General Statutes § 31-293a provides: “no right against fellow employee; exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ if the claimed injury involving such equipment occurred at the worksite on or after October 1,1983. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the commissioner of motor vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1,1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void.”

       The plaintiffs have not appealed from the judgment as to the first count of their complaint. That count alleged that the defendant Mary Ann Sheehan was an employee of Electrolux but that she had an independent legal duty to use the requisite standard of care in the performance of her profession. The first count also named Electrolux as a defendant. The second count is directed against Sheehan alone, and thus she is the only defendant on this appeal. Electrolux then intervened in the case as a third party plaintiff pursuant to General Statutes § 31-293 in order to obtain reimbursement for workers’ compensation benefits that it had paid to Panaro. It has adopted the position of the plaintiffs for the purposes of this appeal.

       The plaintiffs and case law from other jurisdictions use the terms “dual capacity” and “independent contractor” when discussing liability for employees. Compare Young v. St. Elizabeth Hospital, 131 Ill. App. 193, 475 N.E.2d 603 (1985) (using the term dual capacity), with McDaniel v. Sage, 419 N.E.2d 1322 (Ind. App. 1981) (using the term independent contractor). The “dual capacity” doctrine, however, more often describes the situation where an employer has two capacities, such as employer and owner; see, e.g., Ogden v. McChesney, 41 Colo. App. 191, 193, 584 P.2d 636 (1978); or employer and product seller. See, e.g., Bell v. Industrial Vangas, Inc., 30 Cal. 3d 268, 282, 637 P.2d 266, 179 Cal. Rptr. 30 (1981). A noted authority explained the “dual capacity” doctrine as follows: “An employer may become a third person, vulnerable to tort suit by an employee if—and only if—he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” 2A A. Larson, Workmen’s Compensation Law (1983) § 72.81, p. 14-229. The independent contractor doctrine for employees concerns a situation where a person, although an employee under the ordinary meaning of the word and for most purposes, can be an independent contractor for other purposes. See, e.g., McDaniel v. Sage, supra.f

       General Statutes § 31-275 (5) provides: “ ‘Employee’ means any person who has entered into or works under any contract of service or apprenticeship with an employer, whether such contract contemplated the performance of duties within or without the state or a sole proprietor or business partner who accepts the provisions of this chapter in accordance with subdivision (5) of this section, and shall include any person elected to serve as a member of the general assembly of this state and shall also include any salaried officer or paid member of any police department or fire department and any elected or appointed official or agent of any city, town or borough, upon vote of the proper authority of such city, town or borough, including such elected or appointed official or agent, in the state, irrespective of the manner in which he is appointed or employed, which provision shall not be construed as affecting any existing rights as to pensions which such persons or their dependents had on July 1, 1927, or as preventing any existing custom of paying the full salary of any such person during disability due to injury arising in the course of and out of his employment or any volunteer police officer, whether such officer is designated as special or auxiliary, upon vote of the legislative body of the city, town or borough in which such officer serves; but said term shall not be construed to include: (A) An outworker; (B) one whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer’s trade or business; (C) a member of the employer’s family dwelling in his house; but, if in any contract of insurance the wages or salary of a member of the employer’s family dwelling in his house is included in the payroll on which the premium is based, then such person shall, in the event of his sustaining an injury arising out of and in the course of his employment, be deemed an employee and compensated accordingly; (D) any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week; or (E) an employee of a corporation who is a corporate officer and who elects to be excluded from coverage under this chapter by notice in writing to his employer and to the commissioner having jurisdiction. For the purpose of determination of benefits payable under this chapter for death, disability or injury incurred by volunteer police officers, the average weekly wage of such officers shall be the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309.”

       Representative Paul Pawlak commented as follows: “Section 5. This section stops third party suits against fellow employees since such employee usually is unable to meet any judgment involving serious injuries. However, the section specifically permits suits against fellow employees where the injury or death was the result of wilful or malicious wrong by such fellow employee or involves the operation of a motor vehicle. We are here trying to make sure that a fellow employee cannot ordinarily be sued for simple negligence on the job, but we do not believe that he should be protected against wilful or malicious wrong, nor do we believe he should be protected if the employee is injured as a result of a motor vehicle accident.” 12 H.R. Proc., Pt. 9, 1967 Sess., p. 4035.

       See footnote 7, supra.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. David Goggin, Conservator (Estate of Patrick Goggin), et al.
    (13379)
    Healey, Shea, Callahan, Covello and Hull, Js.
    Argued June 8
    decision released August 16, 1988

      Lorrie D. Lewis, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Daniel A. Silver, for the appellees (defendant June Aleksiewicz et al.).
   Arthur H. Healey, J.

This action was instituted by the state of Connecticut acting through the commissioner of the department of income maintenance (DIM) under General Statutes §§ 17-83Z and 17-83m against several defendants seeking recovery for state assistance furnished under its Medicaid program to Patrick Goggin (Goggin), an incapable person. After the pleadings were closed, two defendants, June Aleksiewicz and Janet Braiewa (defendants) filed a motion for summary judgment which was granted. The state has appealed from that judgment. We find error.

The relevant background circumstances are the following. On February 7,1984, and prior thereto, Goggin, who was in poor health and at an advanced age, was a patient in a convalescent home. At that time, he owned a life estate in certain premises in West Hartford. This house needed extensive repairs in order to make it rentable and, as the owner of the life estate, he would be responsible for making any repairs. Goggin’s condition was such that he “would probably never” return to live in that house. The defendants Aleksiewicz and Braiewa and Anne Page were the remaindermen of these premises.

On February 7,1984, a hearing was held in the West Hartford Probate Court on the application of the conservators David T. Goggin and Edythe M. Goggin for an order terminating Patrick Goggin’s life estate in the West Hartford premises. After taking evidence, the Probate Court found that it was in Goggin’s best interest to terminate his life estate and entered an order conveying that interest to the three remaindermen. The probate judge, in an affidavit filed with the defendants’ motion for summary judgment, stated that “the consideration to be paid to Mr. Goggin for the release of the life interest was all of the outstanding bills owed by [him] for maintenance of the dwelling.”

On May 14, 1984, Goggin’s life interest in the real estate was conveyed to the three remaindermen for the sum of $433.32. On June 15,1984, the remaindermen, by warranty deed, conveyed the fee to the West Hartford premises to Albert J. Larose and Thomas J. Larose. By an application dated December 11, 1984, Goggin applied for public assistance from the state under its Medicaid program. That application was granted effective December 2, 1984.

In March, 1986, the state instituted an action in two counts against the several defendants to recover money expended to that time for Goggin’s care. Both counts were against the three remaindermen who were the transferees of Goggin’s life interest. The first count was based on General Statutes § 17-83Z, maintaining that there had been a fraudulent conveyance against the state. It alleged, inter alia, that Goggin was in poor health, had limited assets and income and that his life interest was conveyed for the sum of $433.32. It also alleged that this conveyance “was made either without consideration or for less than fair market value and for the purpose of qualifying for assistance to a transferee having knowledge that such transfer [left] the transferor without sufficient means to support himself . . . .” It went onto allege that to date the state had expended “at least $10,000” for Goggin’s care and that assistance was ongoing.

The second count was based on General Statutes § 17-83m that provides for the state’s right of subrogation to the right of an applicant or recipient of assistanee concerning a transfer of property. It incorporated the allegations of the first count and asserted the state’s right “to pursue rescission, revocation, avoidance or otherwise setting aside the transfer” of the life interest by virtue of its furnishing public assistance to Goggin. The state claimed money damages in addition to other relief.

By way of special defense, the defendants Aleksiewicz and Braiewa invoked the February 7, 1984 Probate Court decree obtained by the conservators terminating the life estate and approving the conveyance to the three remaindermen. In that pleading, these two defendants allege that “as a result of [the probate] court order, [they] received title to [the] property free and clear of any interest that the State alleges to have.”

Thereafter, the defendants Aleksiewicz and Braiewa filed their motion for summary judgment maintaining that there was no genuine issue as to any material fact. To that motion they attached an affidavit of the West Hartford probate judge that set out the circumstances surrounding the probate order terminating and conveying the life estate. The state filed its objection to the motion to which it attached certain documents. See Practice Book §§ 379 through 381. Among these was a counteraffidavit executed by the chief of resources of the DIM. It averred, inter alia, that the conservators had conveyed Goggin’s life use in the property involved to the three remaindermen “for the sum of $451.23” and that, according to “the Department of Income Maintenance Policy Manual Volume I, Chapter III regulations 314-314.1 the value of Mr. Goggin’s life estate was assessed at $8,263.35.” It also maintained that “to date [July 30, 1987,] the state had expended at least $18,000 . . . for his care and treatment,” that the assistance was ongoing and that the action in this case was one “for reimbursement by the State . . . pursuant to Sections 17-83/ and 17-83m for the disposition of property for less than fair market value.”

The trial court acknowledged that the action was brought to recover for the “alleged fraudulent conveyance of a life estate” with the first count alleging the conveyance “for no value for the purpose of obtaining public assistance” and that the second count was based on subrogation under § 17-83m. It noted that there was “no dispute” over the Probate Court order of February 7, 1984, that the applications for state assistance were made and approved in December, 1984, and that there was no indication that any appeal had ever been taken from the action of the Probate Court.

On appeal, the state claims that the trial court erred in: (1) concluding that the order of the Probate Court, which was not appealed, precluded the state from seeking recovery, under §§ 17-83Z and 17-83m, of state assistance it provided Goggin; and (2) granting summary judgment where there was a genuine issue of material fact concerning the fair market value of the life interest transferred in this fraudulent conveyance action.

I

We first address the state’s claim that the trial court erred in concluding that the unappealed Probate Court order of February 7, 1984, precluded the state from pursuing this action under §§ 17-83Z and 17-83m. The trial court did err in this conclusion..

The general rule is that judgment of an issue or claim is no bar as against one who is not a party or privy to a party to that judgment. See Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 85 L. Ed. 22 (1940); Lake Garda Improvement Assn. v. Battistoni, 155 Conn. 287, 294-95, 231 A.2d 276 (1967); Sigal v. Hartford National Bank & Trust Co., 119 Conn. 570, 573, 177 A. 742 (1935); New Haven Sand Blast Co. v. Dreisbach, 102 Conn. 169, 179-80, 128 A. 320 (1925); Bethlehem v. Watertown, 47 Conn. 237 (1879); see also 1 Restatement (Second), Judgments § 34; 46 Am. Jur. 2d, Judgments §§ 518, 519. The basic principle of § 34 of the Restatement, i.e., “that, generally speaking, only persons who are parties are concluded by an action, is of constitutional dimension.” 2 Restatement (Second), Judgments § 34, comment (a), citing, inter alia, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), on remand, 334 F. Sup. 47 (N.D. Ill. 1971), aff'd, 465 F.2d 380 (7th Cir. 1972), cert. denied, 409 U.S. 1061, 93 S. Ct. 559, 34 L. Ed. 2d 513 (1972); see Harmon v. San Diego County, 477 F. Sup. 1084, 1091 (S.D. Cal. 1979). This rule is well established as a matter of common law. See Commissioner v. Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967), on remand, 382 F.2d 295 (2d Cir. 1967); Magavern v. United States, 550 F.2d 797 (2d Cir. 1977) (government not bound by action to which it was not a party); 1 Restatement (Second), Judgments § 34, comment a.

Our decision in Cook v. Morris, 66 Conn. 137, 33 A. 594 (1895), is instructive on the issues in this case. In Cook, the plaintiff conservator brought an action against the defendant town of Morris to recover for support furnished to his ward alleging that the ward was a pauper. The plaintiff, to establish his ward’s indigence, offered in evidence a certified copy of his account as conservator in which it appeared that the ward’s estate had been expended. The account had been accepted and approved by the Probate Court and no appeal had been taken from that decree. The defendant town claimed that the acceptance and allowance of the account had been procured for “an improper and fraudulent purpose” and was “all part of a fraudulent scheme [by the plaintiff conservator]” to prevent his ward from obtaining the benefit of assets in fact belonging to her. In answer to this claim, the plaintiff contended that the probate decree was conclusive. In upholding the trial court’s judgment in favor of the town, we pointed out that “[a] judgment can never be invoked to sustain fraud ...” and that “[a] probate record may always be impeached for fraud.” Id., 140.

In Cook, we also held that the entire matter of the ward’s alleged ownership of property was subject to challenge by the town notwithstanding the probate decree accepting the conservator’s account. In doing so, we said: “The town of Morris was not a party to the proceedings in the Court of Probate. At that time, the town had no interest in the matter so that it could [not] have been made a party to the proceedings in the Court of Probate, [nor] could [it] have appealed from the decree even if it had wished to do so. A judgment never binds those who are not parties or privies.” Id., 140-41.

The state was not a party to the proceedings in the Probate Court when the Probate Court decree of February 7, 1984, was entered. At that time, it had no interest in those proceedings, but its interest arose a number of months after that decree when the application for public assistance was filed in December, 1984. Not only did the state not have any notice of the probate proceeding, but it would not have been able to intervene even if it had had notice. Moreover, it was not privy to any party to the February 7,1984 proceedings so as to be bound on that account by that decree. See generally 1W. Locke & P. Kohn, Connecticut Probate Practice § 116.

It also is correct that this Probate Court decree was appealable under the statutes and that it was not appealed. The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met. General Statutes §§ 45-288, 45-289; Bergin v. Bergin, 3 Conn. App. 566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 404 A.2d 903 (1985). To appeal from a decree in probate, one must be “aggrieved.” General Statutes § 45-288. Obviously, the state was not aggrieved by the probate decree of February 7, 1984. The trial court, therefore, erred in concluding that the unappealed probate decree operated as a bar to the state’s cause of action in this case.

II

The state also claims that the trial court erred in granting summary judgment because there existed a genuine issue of material fact, i.e., that Goggin’s life estate in the West Hartford premises was transferred for less than fair market value. We agree.

“The party moving for summary judgment ‘ “has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” ’ D.H.R. Construction Co. v. Don nelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Because the burden of proof is on the moving party, the facts presented must be viewed in the light most favorable to the party opposing the motion. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).” Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). “The movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. D.H.R. Construction Co. v. Donnelly, [supra]; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). The test is whether a party would be entitled to a directed verdict on the same facts. United Oil Co. v. Urban Redevelopment Commission, [158 Conn. 364, 380, 260 A.2d 596 (1969)].” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., [190 Conn. 8, 11-12, 459 A.2d 115 (1983)]; Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. ‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.’ Bartha v. Waterbury House Wrecking Co., supra, 12.” Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book §§ 380 and 381, which contradict those stated in the movant’s affidavits and documents. Farrell v. Farrell, supra, 39-40.

General Statutes § 17-83Í provides in part: “It shall constitute a fraudulent conveyance as against the state for any person to . . . transfer . . . property for less than fair market value, for the purpose of qualifying for assistance [under chapter 302 of the General Statutes], to a transferee either having knowledge of such purpose, or having knowledge that such conveyance leaves the transferor without sufficient means to support himself on a reasonable standard of health and decency.” (Emphasis added.) It also authorizes the commissioner of income maintenance to institute a civil action either to set aside any such conveyance and to recover from the proceeds of such property the cost of any assistance provided the transferor or to recover from the proceeds of any such conveyance the cost of any assistance provided to the transferor. The commissioner’s total recovery under this statute “shall not exceed the amount by which the fair market value of such property exceeds the consideration exchanged [for it] by the transferee.” (Emphasis added.)

There can be no question that the predicate of the state’s cause of action was grounded on a fraudulent conveyance; the trial court so stated in its memorandum of decision as did the state’s trial court brief on the summary judgment motion that set out that the action was brought pursuant to §§ 17-831 and 17-83m. The only document that the defendants filed at that time was the affidavit of the judge of probate who entered the February 7, 1984 decree. That affidavit indicated that on the evidence taken at the hearing, he found that it was "in the best interest of [Patrick] Goggin,” given the condition of his health, to terminate his life interest and have it conveyed to the three remaindermen, the consideration for which was the payment of all the outstanding bills owed by Goggin for the maintenance of this property. The Probate Court decree has been issued under the authority of General Statutes §§ 45-77b and 45-238. Although this affidavit does not specify the dollar amount of the outstanding bills, the state’s counteraffidavit alleges that the life estate was conveyed to the three remainder-men for the sum of $451.23. In addition, it also alleges that the value of the life estate, when conveyed, was $8263.35 according to specified DIM regulations. The affiant in the counteraffidavit is the chief of resources of DIM who avers that not only is the information he gives in his affidavit based upon knowledge acquired during the duties of his employment but also that he is the person appointed and empowered by the DIM commissioner to "prepare, enforce and collect claims for welfare reimbursement” due the state under title 17 of the General Statutes. There is thus a genuine issue of material fact concerning the fair market value of the life estate under § 17-83L "Fair market value” is a question of fact. Turgeon v. Turgeon, 190 Conn. 269, 275, 460 A.2d 1260 (1983); New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 236, 348 A.2d 641 (1974). The defendants have not, as is their burden on their motion for summary judgment, demonstrated the contrary. “A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, supra, 379; see Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 378, 374 A.2d 1051 (1977).

Moreover, in speaking of fraudulent conveyances, we have said: “ ‘A fraudulent conveyance ... is one made without substantial consideration and which renders the [transferor] unable to meet his obligation or one made with a fraudulent intent in which the [transferee] participated.’ ” Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983), quoting Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983), and citing General Statutes § 52-552. General Statutes § 17-83Z has, as an element of the fraudulent conveyance that it sets up, not only the “less than fair market value” component but also the knowledge, actual or constructive, of the proscribed purpose of such conveyances under this statute. “ ‘The determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances’ . . . [and] [s]uch a fact is . . . not ordinarily proven by direct evidence, but rather, by inference from other facts proven . . . .” Zapolsky v. Sacks, supra. “It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.” United Oil Co. v. Urban Redevelopment Commission, supra, 376; Nolan v. Borkowski, 206 Conn. 495, 504-505, 538 A.2d 1031 (1988). We have pointed out that this is particularly applicable in the case of fraudulent conveyances. See, e.g., Batick v. Seymour, supra, 646-47 (summary judgment erroneously granted in deed of real property); Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978).

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 17-831 provides: “fraudulent conveyance for PURPOSE OF OBTAINING ASSISTANCE. CIVIL ACTION BY COMMISSIONER. It shall constitute a fraudulent conveyance as against the state for any person to assign, transfer or otherwise dispose of property for less than fair market value, for the purpose of qualifying for assistance under this chapter, to a transferee either having knowledge of such purpose, or having knowledge that such conveyance leaves the transferor without sufficient means to support himself on a reasonable standard of health and decency. The commissioner of income maintenance, may institute a civil action (1) to set aside any such conveyance, and to recover from the proceeds of such property the cost of any assistance provided to the transferor, or (2) to recover from the proceeds of such conveyance the cost of any assistance provided to the transferor. The commissioner may require that any remaining proceeds be applied to such transferor’s future support. The commissioner’s total recovery under this section shall not exceed the amount by which the fair market value of such property exceeds the consideration exchanged therefor by the transferee. Such civil action shall be brought in the superior court for the judicial district of Hartford-New Britain or in any other venue otherwise appropriate. In any such action brought to set aside a conveyance or to recover the proceeds of a conveyance, made within twenty-four months before the date of such application for assistance directly or indirectly to a transferee who is a parent, grandparent, descendant or spouse of the transferor, the transferee shall bear the burden of proving that the conveyance was not fraudulent.”

       General Statutes § 17-83m provides: “state’s right of subrogation TO RIGHT OF APPLICANT OR RECIPIENT OF ASSISTANCE RE TRANSFER OF PROPERTY. CIVIL action BY COMMISSIONER. In the event that any person applying for or receiving assistance under this chapter has any right to rescind, revoke, avoid or otherwise set aside any assignment, transfer or other disposition of property, the state shall be subrogated to such right. The commissioner of income maintenance, may bring such civil actions and pursue such other remedies as would have been available to such recipient to enforce such right, for the purposes described in section 17-83Z, whether or not such disposition constituted a fraudulent conveyance within the meaning of section 17-83Z.”

       The original defendants were David T. Goggin and Edythe M. Goggin, conservators of the estate of Patrick Goggin, an incapable person, June Aleksiewicz, Janet Braiewa and Anne Page. The action was later withdrawn as to the conservators.

       The affidavit of the probate judge was the following:
      “I, JOHN a. berman, being duly sworn, depose and say:
      “1. Iam Probate Judge for the District of West Hartford, Connecticut.
      “2. Iam making this affidavit at the request of Attorney Daniel A. Silver, counsel for June Aleksiewicz and Janet Braiewa.
      “3. On February 7,1984 a Hearing was held in the West Hartford Probate Court on an application by Mr. Patrick F. Goggin’s conservators to terminate Mr. Goggin’s life interest for the premises known as 45 Newington Road, West Hartford, Connecticut.
      “4. As a result of evidence taken at that Hearing I found that it was in the best interest of Mr. Goggin to terminate the aforementioned life interest and convey his interest to the remaindermen, namely, June Aleksiewicz, Janet Braiewa and Annie Page a/k/a Ann Page. The consideration to be paid to Mr. Goggin for the release of the life interest was all of the outstanding bills owed by Mr. Goggin for maintenance of the dwelling.
      “5. Mr. Goggin’s conservators indicated at the Hearing the following:
      “A. Mr. Goggin was a patient in a convalescent home.
      “B. The house needed extensive repairs in order to make it rentable and that Mr. Goggin would be responsible for making all repairs.

        “C. That Mr. Goggin would probably never return to live in the premises.
      “D. The transfer of Mr. Goggin’s life interest was in the best interest of Mr. Goggin.

        /si John A. Berman John A. Berman”

       There was also included a certified copy of the inventory, dated March 12, 1984, in the estate of Patrick Goggin as an incapable, setting out among the assets: “Life use of premises located at 45 Newington Road, West Hartford, Connecticut,” which was inventoried at “No value.”
      In addition, there was a certified copy of a warranty deed of the Newington Road premises, dated June 15, 1984, whereby June Aleksiewicz, June Braiewa and Anne Page conveyed the premises to Albert J. Larose and Thomas J. Larose. The deed notes that the conveyance tax received was $74.25. See General Statutes § 12-494. These subsequent transferees are not parties to this action.

       The Restatement (Second) of Judgments, § 34, entitled “Parties and Persons represented by parties,” provides: “(1) A person who is named as a party to an action and subjected to the jurisdiction of the court is a party to the action.
      “(2) A party is bound by and entitled to the benefits of the rules of res judicata with respect to determinations made while he was a party, except as stated in §§35 to 38.
      “(3) A person who is not a party to an action is not bound by or entitled to the benefits of the rules of res judicata, except as stated in §§ 30-32 and in this Chapter.”
      Although the basic principle of § 34 is subject to certain exceptions as set out in the Restatement, none are apposite in this case.

         The claim is made by the defendants that in the event we hold that the state is not barred by the unappealed probate decree of February 7,1984, the time-honored finality of unappealed probate decrees is gravely drawn into question and that all conveyances made pursuant to probate court decrees are in jeopardy. This is wholly without merit.
      The issue in this case does not concern the title to real property conveyed pursuant to probate decrees. Rather, it concerns whether the defendants, transferees of an interest in real property, had knowledge of the nature of that transfer, which, in legal contemplation, constituted participating in a fraudulent conveyance. In the event the knowledge specified by General Statutes § 17-83Z is found on the part of these defendants, then the state has the right to recover money damages or have the transfer set aside. Moreover, in oral argument, the state represented that it was primarily interested in obtaining money damages and not the setting aside of the transfer of the real estate, which now has been transferred to others who are not parties to this suit.

       General Statutes § 17-83Í also provides in part: “In any such action brought to set aside a conveyance or to recover the proceeds of a conveyance, made within twenty-four months before the date of such application for assistance directly or indirectly to a transferee who is a parent, grandparent, descendant or spouse of the transferor, the transferee shall bear the burden of proving that the conveyance was not fraudulent.”
      The state argues that the defendants have the burden of proving, under the statute, that the conveyance was not fraudulent. We need not reach that argument because it is clear that there is a genuine issue of material fact to be resolved, i.e., the fair market value of che life interest conveyed from Goggin to the transferees.

       The counteraffidavit, dated July 30,1987, also notes that the state had, to that time, expended at least $18,000 for the care and treatment of Goggin.
      The state also submitted a certified copy of a warranty deed, dated July 14, 1984, by which the three remaindermen conveyed the entire fee title to the premises for approximately $67,000.

       General Statutes § 52-552 provides: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”