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GONZALEZ v. O & G INDUSTRIES, INC.—DISSENT

EVELEIGH, J., dissenting. I agree with the majority

that the trial court in the present case improperly determined that ‘‘the plain and unambiguous meaning of the

word ‘paid’ . . . in [General Statutes] § 31-291 is ‘simply to transfer money.’ ’’ I further agree with the majority that ‘‘the term ‘paid compensation benefits’ in § 31-

291 requires a principal employer to demonstrate that

it bore the cost of all of the workers’ compensation

benefits to an injured employee in order to obtain statutory immunity from civil actions.’’ (Emphasis in original.) I disagree with the majority, however, that

‘‘although § 31-291 requires a principal employerto bear

the costs of all of the injured employees’ benefits to be

entitled to immunity, there nevertheless is no genuine

issue of material fact as to whether the [named] defendant [O & G Industries, Inc.]1 bore all of those costs in

this case.’’ (Footnote added.) To the contrary, I would

conclude that the defendant did not meet its burden of

demonstrating that there is no genuine issue of material

fact that it ‘‘bore the cost’’ of all of the workers’ compensation benefits and that, therefore, the trial court

improperly granted summary judgment in favor of the

defendant on the claims brought by the plaintiffs James

L. Thompson II, Carol M. Thompson, and James McVay.2

In the alternative, I would conclude that the matter

should be remanded to the trial court for the parties

to have the opportunity to relitigate and the trial court

to determine, in light of the majority’s clarification of

the term ‘‘paid’’ in § 31-291, whether there is a genuine

issue of material fact as to whether the defendant has

statutory immunity. Therefore, I respectfully dissent.

I agree with the facts and procedural history as set

forth in the majority opinion. I will provide additional

facts as necessary. I begin my analysis with the standard

of review applicable to a trial court’s decision to grant

a motion for summary judgment. ‘‘Practice Book § 17-

49 provides that summary judgment shall be rendered

forthwith if the pleadings, affidavits and any other proof

submitted show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. A party moving for summary judgment is held to a strict standard. . . . To

satisfy his burden the movant must make a showing

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. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment

fail to establish that there is no genuine issue of material

fact, the nonmoving party has no obligation to submit

documents establishing the existence of such an issue.

. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that

demonstrates the existence of some disputed factual

issue. . . . 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 § [17-45]. . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Citation omitted; internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn.

223, 228, 116 A.3d 297 (2015).

I disagree with the majority that ‘‘[a]pplying this construction of § 31-291 to the present case’’ there ‘‘is no

genuine issue of material fact as to whether the defendant paid for all of the benefits provided to Thompson

and McVay’’ through the contractor controlled insurance program (CCIP). To the contrary, under the construction of § 31-291 adopted by the majority, I would

conclude that the defendant did not meet its burden of

proving that there is no genuine issue of material fact

that it ‘‘bore the cost of all of the workers’ compensation

benefits . . . .’’ (Emphasis in original.) Instead, I would

conclude that, although the defendant may have demonstrated that it transferred the funds for the workers’

compensation benefits to the insurers, viewing the evidence in the light most favorable to the nonmoving

party, there is a genuine issue of material fact as to

whether the defendant bore the entire cost of the workers’ compensation benefits. Specifically, a review of the

evidence that the plaintiffs submitted in connection

with their opposition to the motion for summary judgment demonstrates a genuine issue of material fact

regarding whether, under the definition adopted by the

majority in this opinion, the defendant bore the entire

cost of the workers’ compensation benefits.

Pursuant to the subcontracts in the present case,

each of the defendant’s subcontractors was required

to participate in the CCIP. Through the CCIP, each

subcontractor was issued its own workers’ compensation policy with its own policy number. The defendant

was not an insured on these policies. These policies

contained an ‘‘Assignment Consent Endorsement,’’ providing that the term ‘‘[s]ponsor as used in this policy

means [the defendant]’’ and providing that ‘‘[t]his policy

is issued at the direction of [s]ponsor . . . who shall

be solely responsible for payment of [the] premium.’’

The endorsement further provided that ‘‘[t]he [i]nsured

has assigned to [the] [s]ponsor’’ the following rights:

(1) ‘‘[t]he [i]nsured’s right, title and interest to any and

all returns of premiums, dividends, discounts or other

adjustments’’; and (2) ‘‘[t]he [i]nsured’s rights of cancellation as [i]nsured.’’ The defendant was not an insured

on the policies issued to its subcontractors. Although

the policies contained an ‘‘Alternate Employer Endorsement,’’ which provided that the defendant would be
considered an insured if the employee became a temporary or special employee of the defendant, it is undisputed that the plaintiffs never became temporary or

special employees of the defendant. Accordingly, the

defendant was never an insured under the policies at

issue in the present case. Therefore, although the insurance policies themselves demonstrate that the defendant was ‘‘solely responsible for payment of [the]

premium,’’ the fact that the defendant was never named

as an insured on the policy raises a question of fact as

to what entity actually bore the cost of the workers’

compensation benefits provided to Thompson and

McVay.

The CCIP Insurance Manual (manual) also raises a

question as to which entity bore the cost of the benefits.

First, the manual explains that ‘‘[the defendant] provides [w]orkers’ [c]ompensation, [g]eneral [l]iability

and [e]xcess [l]iability insurance for all [e]nrolled [p]arties under the CCIP for [w]ork performed at the [p]roject [s]ite.’’ The manual, however, then details a

complicated procedure, which it describes as ‘‘the procedures for bidding and how CCIP insurance amounts

are paid for.’’ The manual further provides that it ‘‘contains several worksheets that can help [subcontractors]

determine [their] insurance costs for [the] project.’’ The

manual explained as follows: ‘‘Rates are due at the

time of [the defendant’s] delivery of this manual. Once

collected, these will be used for the life of the subcontractor’s performance of work on site. [A deductive

change order] will be taken against the contract in the

amount of the [t]otal [v]erified [i]nsurance [c]osts based

upon the subcontractor’s estimated labor and actual

insurance costs. As additional [subcontract] tiers are

identified and verified, or initial insurance costs are

adjusted, an additional deductive change [order] may

be applied. In the event that the actual insurance costs

for all tiers exceed the estimated costs, [the defendant]

may take an additional deductive adjustment to the

subcontract.’’ (Emphasis added.) As the foregoing demonstrates, the procedures for obtaining workers’ compensation insurance ensured that the defendant would

be able to recoup any additional costs that it incurred

to provide workers’ compensation insurance to its subcontractors. This language in the manual seems to indicate an arrangement by which the defendant is able to

recover all costs for insurance from the subcontractor

and, therefore, raises a genuine issue of material fact as

to whether the defendant bore the cost for the workers’

compensation insurance, or was able to recover all

costs from its subcontractors.

The manual also explains that each ‘‘[s]ubcontractor

shall include this CCIP [i]nsurance [a]mount in its

[a]pplication(s) for [p]ayment when and as directed by

[the defendant]. [The defendant] will, when due, on

behalf of the subcontractor, make such payment by

delivering the CCIP [i]nsurance [a]mount (or the por-
tion of the CCIP [i]nsurance [a]mount that was included

in the [a]pplication for [p]ayment) to the relevant

[w]orkers’ [c]ompensation and [g]eneral [l]iability

insurance companies. [The defendant] will deliver the

balance of the [a]pplication for [p]ayment due for

[w]ork completed to the subcontractor.’’ (Emphasis

added.) This language from the manual seems to imply

a relationship whereby the defendant acts as the conduit for the money of the subcontractor, but does not

bear any cost for workers’ compensation insurance

itself.

At his deposition, Daniel Cretella, the defendant’s

financial analyst, testified as follows regarding this portion of the manual in response to questions from the

plaintiffs’ counsel:

‘‘Q. Okay. And if you look at [the] Monthly Payments

[section of the manual], it says [that the] subcontractor

shall include the CCIP amount in its application for

payment when and as directed by [the defendant]. [The

defendant] will, when due, on behalf of the subcontractor make such payment by delivering the CCIP insurance amount to the relevant workers’ compensation

and general liability insurance company. That was the

practice, correct?

‘‘A. That’s not accurate. . . .

‘‘Q. That’s not accurate? Okay. Now, this identifies

the process where a payment would be made by [the

defendant] on behalf of the contractor and then a deductive change order would be applied to the bid to account

for the workers’ compensation costs, correct? . . .

‘‘A. That is not correct. . . .

‘‘Q. Okay. That’s what it says [in the manual] though,

right? . . .

‘‘A. What you just read is what it says.

‘‘Q. Well, the concept is as I described, no? . . .

‘‘A. No, that’s not true.

‘‘Q. Okay. So [this section of the manual is] inaccurate?

‘‘A. I would say that that section is inaccurate.’’(Internal quotation marks omitted.)3

The fact that Cretella testified that the defendant’s

practice was not consistent with the process described

in the manual is significant. The manual describes the

defendant as making payments on behalf of the subcontractors and details how the defendant’s subcontractors

can determine their insurance costs for the project.

Though other aspects of the manual had been altered

during the formation process, Cretella admitted that

the defendant never asked for this ‘‘inaccurate’’ section

to be changed. In my view, this conflict between the

language of the manual and Cretella’s deposition testi-
mony, in and of itself, creates a material question of fact

as to which parties, the defendant or its subcontractors,

bore the cost of the workers’ compensation insurance

in the present case.

As this court has explained, when ‘‘there is room for

a reasonable difference of opinion among fair-minded

jurors,’’ summary judgment is inappropriate. (Internal

quotation marks omitted.) Labbe v. Pension Commission, 239 Conn. 168, 192, 682 A.2d 490 (1996). The fact

that Cretella testified that these portions of the manual

were inaccurate establishes a genuine issue of material

fact. See Hurley v. Heart Physicians, P.C., 278 Conn.

305, 321, 898 A.2d 777 (2006) (‘‘[w]e agree with the

plaintiffs that they provided a sufficient evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact—as to whether [the defendant’s

representative] behaved in a manner in derogation of

the [a] technical manual—sufficient to have precluded

the trial court from [granting summary judgment]’’). In

the present case, the plaintiffs, through the deposition

testimony of Cretella, have presented a sufficient evidentiary basis to demonstrate the existence of a genuine

issue of material fact as to whether the defendant acted

as a conduit for premium payments on behalf of the

subcontractors and, therefore, did not bear the entire

cost of the workers’ compensation benefits.

An examination of the contractual documents for the

subcontractor that employed Thompson, United Anco

Services, Inc. (United Anco), also raises a genuine issue

of material fact. Pursuant to the procedures detailed in

the manual, when United Anco submitted its bid to the

defendant, it submitted a standard form to the defendant’s insurance broker. On this form, United Anco

estimated its total insurance premium to be $63,525.16.

Pursuant to the manual, United Anco added a profit

charge to the total insurance premium, making the total

insurance cost $69,877.68. Throughout the course of

the project, the defendant deducted a total insurance

premium cost of $1,156,604.04 from United Anco’s subcontract. Of this amount, 10 percent was a profit that

United Anco had added on to its insurance cost. The

deductions forinsurance premium costs had no relation

to the actual cost born by the defendant from implementing the CCIP. In fact, the CCIP was intended to

be a profit center for the defendant.4

Indeed, the following colloquy between the plaintiffs’

counsel and Cretella explains the process:

‘‘Q. Okay. So there’s a bid package which includes

insurance. You then take out the CCIP cost from the

bid package and a profit amount that would be attributable to the insurance and that is the net amount that

the contractor is paid. Is that a fair statement?

‘‘A. No.

‘‘Q. Okay. And why is that incorrect?
‘‘A. Because it’s got nothing to do with the cost of

the CCIP, it’s got to do with the particular subcontractor’s cost to purchase insurance had they been purchasing insurance. It’s their rates based on their declaration

pages at their lost history. It’s what they would have

paid, what they included in their contract in that bid

amount that you put that if they were the ones that

were going to purchase that insurance. . . .

‘‘Q. Well . . . there’s an amount—at least initially

the process would be that you submit the form to [the

defendant’s insurance broker] and then they come back

with a letter verifying the amount for the particular

contractor . . . right?

‘‘A. That’s correct.

‘‘Q. Okay. And then . . . that amount . . . is subtracted off of the gross bid amount to show what I

would call a net bid amount minus insurance, correct?

‘‘A. That’s correct.

‘‘Q. Okay. And then the contract is run through, the

particular contractor finishes his work and then there’s

a final calculation that’s made by [the defendant’s insurance broker] as to what the actual insurance amount

or premium amount attributable to that subcontractor

would be, correct? . . .

‘‘A. The subcontractor would have paid, if they were

still contractually obliged to buy insurance whether it

be—they would have had to pay, based on the payroll

expended, is how insurance is calculated.’’

The facts that were before the trial court raised the

issue of whether, through this deductive change order

system, the defendant merely relieved the subcontractors from having to procure the workers’ compensation

insurance coverage but not from having to pay for it,

as statutorily required.5 The fact that, following the

implementation of the CCIP, the defendant decided to

implement the aforementioned deductive change order

system rather than reinstitute the subcontractor contracts and simply bill the subcontractors for their work

raises questions of fact as to who actually shouldered

the financial burden of the workers’ compensation benefits. If the legislature intended for the principal

employer to merely be responsible for procuring the

insurance, it would have said so. I do not believe that

the statutory language or the legislative history support

an understanding of § 31-291 that would grant immunity

to general contractors, where the subcontractors reimburse the general contractor for the premium costs or

the general contractor is making a profit off of the

subcontractors by implementing a CCIP whereby it

deducts the subcontractors’ projected insurance costs,

which include a profit margin. The deposition testimony

of Cretella supports the proposition that the defendant

saved approximately $868,000 by taking the insurance
credits from the subcontractors and administering the

insurance program itself.6 Certainly, underthe construction of § 31-291 adopted by the majority, there is a

genuine issue of material fact as to whether the defendant funded the workers’ compensation benefits, either

partially or in full, largely from the insurance credits.

In accordance with the new definition of ‘‘paid’’

adopted by the majority, I would conclude that the

employer must provide the workers’ compensation benefits to the subcontractors forfree. Indeed, as the majority concludes, the employer must bear the entire cost

of the workers’ compensation benefits. In my view,

another genuine issue of material fact exists because

the evidence demonstrates that the defendant does not

represent that it provided these benefits to the employer

for free. Indeed, Cretella admitted at his deposition

that the defendant did not provide the CCIP to the

subcontractors for free.7 At oral argument before this

court, in response to a question of whether the defendant provided the insurance for free, the defendant’s

attorney initially responded by stating that ‘‘the word

free is a very tricky thing.’’8I would conclude that,

unless the workers’ compensation benefits were provided to the subcontractor for free, a genuine issue of

material fact exists regarding what entity or entities

bore the cost of the workers’ compensation benefits in

the present case.

Furthermore, the trial court recognized the import

of the evidence submitted by the plaintiffs, finding as

follows: ‘‘The plaintiffs also argue that in reality the

subcontractors actually ‘paid’ the insurance policy

under the CCIP . . . with [the defendant] acting as an

intermediary. The plaintiffs explain that when the subcontractors originally submitted their bids, they

included as a line item the cost of purchasing workers’

compensation insurance for the project. Later, when

the subcontractors enrolled in the CCIP,[the defendant]

deducted from the subcontractor’s contract price the

line item cost used in the bid for estimating the cost

of procuring insurance. The plaintiffs cite this ‘deduct

change order for insurance premium’ process as proof

that the intent of the CCIP was to have the subcontractors, not [the defendant], pay for the workers’ compensation insurance. In essence, the plaintiffs argue that

[the defendant] wrote checks and authorized wire transfers merely as a conduit for subcontractor money. The

plaintiffs also offer evidence that the CCIP . . .

allowed [the defendant] to charge a general contractor’s

mark-up on the CCIP premiums, thereby allegedly profiting on the transactions. Finally, plaintiffs point to language in [the manual] stating that ‘premium payments

are made on behalf of the subcontractor.’ On the basis

of these proofs, the plaintiffs suggest that the defendant

. . . has failed to establish as undisputed fact that it

‘paid’ workers’ compensation benefits within the meaning of § 31-291.
‘‘The court disagrees. In order for these facts to be

material to the application of § 31-291, the court would

need to interpret and apply ‘paid’ in a fashion well apart

from its plain and ordinary meaning. Underthe ordinary

meaning of ‘paid,’ the person who tenders or transfers

money to another in exchange for property or a service,

or in satisfaction of an obligation, is deemed to the

person that has ‘paid’ the debt or ‘paid’ for that which

is received in exchange. The common usage of the word

‘paid’ does not contemplate an accounting of debits and

credits and an economic analysis as to which party has

in fact incurred a permanent change in [its] financial

position as a result of a transaction.’’

The majority rejects, however, the narrow interpretation of the term ‘‘paid’’ and concludes that it does

require ‘‘a principal employer to demonstrate that it

bore the cost of all of the workers’ compensation benefits to an injured employee in order to obtain statutory

immunity . . . .’’ (Emphasis omitted.) As a result, the

evidence that the plaintiffs presented to refute the

motion for summary judgment does demonstrate that

there is a genuine issue of material fact underthe majority’s definition of ‘‘paid’’ for purposes of § 31-291.

Accordingly, I would conclude that the judgment of the

trial court should be reversed and the matter should

be remanded to that court with direction to deny the

defendant’s motion for summary judgment.

I would conclude that, because the trial court applied

a narrow definition of the term ‘‘paid’’ as applied to

§ 31-291, it never reached the question of whether the

defendant actually bore the financial burden of providing workers’ compensation benefits to Thompson and

McVay. Thus, in the alternative, I would conclude that

at the very least this court should remand the matter

to the trial court for reconsideration of the defendant’s

motion for summary judgment in light of this court’s

decision. See McDermott v. State, 316 Conn. 601, 611,

113 A.3d 419 (2015) (concluding that because trial court

applied wrong legal standard to facts, it was ‘‘necessary

to remand the case to the trial court for a new trial to

allow the parties to present their cases with the correct

legal standard in mind and to allow the trial court to

evaluate the facts in light of this correct legal

standard’’).

Accordingly, I respectfully dissent.

1

I note that, although there are other defendants in the present case, they

are not involved in this appeal. See footnote 3 of the majority opinion. For

the sake of simplicity, I refer to O & G Industries, Inc., as the defendant.

2 For the sake of consistency with the majority opinion, I refer to James

L. Thompson II, Carol M. Thompson, and James McVay collectively as the

plaintiffs and to James L. Thompson II by his surname. See footnote 2 of

the majority opinion.

3 This additional colloquy occurred between Cretella and the plaintiffs’

counsel regarding the manual:

‘‘Q. Okay. In the subcontractor bid section, do you see that? . . .

‘‘A. Yes.

‘‘Q. Okay. The second sentence says, ‘the section . . . identify[s] subcontractor insurance costs describe[s] the procedure for bidding and how [the]
CCIP insurance amounts are paid for.’ Do you see that?

‘‘A. I see it.

‘‘Q. By whom? Paid for by the subcontractor, the contractor, or [the

defendant]? . . . Or somebody else? What is your interpretation of that

sentence? So let me ask you . . . would [that] sentence say, the section

. . . identifying subcontractor insurance costs describe[s] the procedures

for bidding and how [the] CCIP insurance amounts are paid for by the

contractor or [the defendant]? . . .

‘‘A. The way I would interpret that, because it starts off saying, ‘the section

. . . identifying subcontractor insurances costs’ . . . is the procedure by

which we are identifying the scope or that piece of the contract that would

be the subcontractor’s responsibility to purchase insurance. So the cost that

they would be paying for insurance if it was left in their contract.

‘‘Q. Okay. Paid for by the contractor?

‘‘A. The subcontractor, I think is a more accurate, you know, statement

there. If the subcontractor was purchasing insurance. Again, that cost that’s

part of their contract.

‘‘Q. Okay. So just so I’m clear on this, it’s paid for by the subcontractor,

meaning a contractor on the job other than [the defendant]? . . . Is that

fair to say?

‘‘A. I’m saying, again, my interpretation only is that this section . . .

‘identifying subcontractor insurances costs’ . . . [i]s referring to specifically the cost that was included in the bid in . . . each individual subcontractor’s contract for carrying insurance.

‘‘Q. Right. So my question again is [whether] that sentence mean[s] paid

for by the subcontractor meaning an entity other than [the defendant]? . . .

‘‘A. Prior to us relieving them of their obligation, yes. . . .

‘‘Q. Let me ask it this way, that sentence is directed to the subcontractor,

correct? . . .

‘‘A. This is the subcontractor bid section.

‘‘Q. Okay. So it’s directed to the subcontractor, right?

‘‘A. Okay.

‘‘Q. Is that a yes?

‘‘A. Yes.

‘‘Q. Okay. And then it says . . . ‘[this manual] contains several worksheets

that can help you determine your subcontractor insurance costs for the

project.’ Do you see that?

‘‘A. I see it.

‘‘Q. And is the insurance cost for the project [that would be labeled on

forms] as the total initial insurance cost? Is that what they are referring

to? . . .

‘‘A. Yeah. . . . This is to help identify the insurance costs that the subcontractor had in their subcontract, that they carried in . . . had they had to

provide the insurance.’’

4 The following colloquy occurred during questioning by the plaintiffs’

counsel at Cretella’s deposition regarding the underlying purpose of the

CCIP:

‘‘Q. Well, the concept was going into it that you would save that

money, correct?

‘‘A. That’s the concept.

‘‘Q. Okay. Is that the only place that you would have sort of a profit center

on a CCIP, would be you would be able to save paying the contractor the

profit margin that they would add on top of the insurance? . . .

‘‘A. No. . . .

‘‘Q. Okay. Where are other profit centers?

‘‘A. Well, it is economies of scale. . . . So if you have 100 folks going to

100 different brokers and 100 different insurance companies, you are going

to have commissions and things that are paid along the way. Whereas if

you aggregate and then purchase that centrally, [there is] a savings. It’s

economies of scale.’’

5 At oral argument on the defendant’s motion for summary judgment, the

trial court stated as follows: ‘‘I’d parse this into two things. There’s the

obligation to procure and provide the insurance . . . and the obligation to

pay for it. What I see is [the defendant] relieving [its subcontractors] of the

obligation to procure and provide the insurance, but not relieving them of

the obligation to pay for it.’’

6 At Cretella’s deposition, the following exchange occurred during questioning by the plaintiffs’ counsel:

‘‘Q. . . . I want to know a little bit about . . . the overhead and profit

on the insurance premium. Okay? So hypothetically, if you don’t have a

CCIP it’s assumed that there’s a profit assigned to the amount that the

contractor pays for insurance? . . .

‘‘A. Yes. . . .
‘‘Q. Normally, the contractor would recover that profit amount from the

general contractor as part of the bid price—

‘‘A. Yes.

‘‘Q. —or include it in the bid price?

‘‘A. Right. So . . . for instance, this $3 million United Anco bid here is

based on whatever estimate of hours they had for payroll.

‘‘Q. Right. Understood.

‘‘A. And then any cost that they would have included in their bid, overhead,

profit, insurance, all that other stuff . . . that’s associated with that bid

amount. As I understand it, when they are doing bids you kind of work

down to the bottom line and you add a profit and overhead amount that

goes on everything that is above the line which would be payroll, insurance,

all that stuff. . . . So yes, the insurance does have profit and overhead

associated with it.

‘‘Q. Some of them are 10 percent, some of them are 15 percent, how is

that determined?

‘‘A. The 15 percent was the standard rate that was put on the forms. You

had some subcontractors, I believe, that came back and said [they] don’t

carry 15 percent on this, [they] carry something less. And that was the

negotiation that took place. . . .

‘‘Q. Okay. So someone claimed that they took a 15 percent profit on top

of the insurance and some of them would claim they took a 10 percent

profit on top of the insurance and, ultimately, [the defendant] would decide

with each contractor whether they were going to get a 10 percent or 15

percent allocation?

‘‘A. That’s correct.’’

The colloquy between Cretella and the plaintiffs’ counsel continues:

‘‘Q. Okay. Is there any material in front of you where you would be able

to determine what that 10 or 15 percent profit line would be aggregated for

the whole CCIP? . . .

‘‘A. No.

‘‘Q. Okay. Because you gave me sort of a spreadsheet that showed a delta

like $300,000. Did you prepare that?

‘‘A. I did.

‘‘Q. Okay. And what does that number mean?

‘‘A. . . . [W]ithin that would be . . . the total of the insurance cost that

would have been for the [subcontractor] plus their overhead and profit if

any aggregated. . . .

‘‘Q. Okay. So is there a way that we could back from that number into

what the overhead and profit would be? . . . Is there a way you could

estimate that?

‘‘A. Sure.

***

‘‘Q. Can you do that calculation . . . sort of on an estimated basis?

‘‘A. Again, this is a total assumption. So if we go with 12 percent as an

average and you divided that by 1.12, you’ll get a number that gives you

the base, if you will, or the insurance cost of [approximately $7,300,000].

And I’ve got a delta, which would be the overhead and profit line. Again,

all assumptions of $868,000, we’ll call it.

‘‘Q. Okay. So you are giving me sort of a ballpark which would be

assuming that some of the contractors had a 10 percent, some had 15

percent, maybe some had 13 percent, we are just using that as an example?

‘‘A. That’s correct.’’ (Emphasis added.)

7 The following colloquy occurred at Cretella’s deposition during questioning by the plaintiffs’ counsel:

‘‘Q. . . . So is it your position you gave them this insurance for free? . . .

‘‘A. It’s an interesting way to put it. It’s a more effective way . . . to

purchase insurance, if you will. . . .

‘‘Q. Just answer my question. Did you give them all this insurance for

free? . . . Is that your contention?

‘‘A. Did we give it to them for free? We didn’t give them anything, so no.

We were providing the insurance. . . .

‘‘Q. . . . It’s your contention that there was no consideration paid at

all by United Anco or [the defendant’s other subcontractors] for workers’

compensation insurance within the CCIP?

‘‘A. That is correct.’’

8 Specifically, when asked during oral argument whether the defendant

‘‘provided the insurance for free’’ counsel for the defendant gave the following response: ‘‘The word free is a very tricky thing. They incurred a lot of—

they paid a lot of money and there’s a trade-off when you bring a subcontrac-
tor on there’s certain incentives in either direction. If you use the word free

in the context of the subcontractor did not have to pay a dime for it, then

yes, that’s the word to use if that’s the word you’re comfortable with, I will

be as well . . . .’’