Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Analysis and Impact of Connecticut Appellate Level Opinions Involving Personal Injury Issues

Advance Release Opinions – September 19

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Connecticut Supreme Court

The Supreme Court advance released two decisions dealing with the firefighter’s rule in personal injury cases.

Sepega v. DeLaura – The firefighter’s rule precludes a police officer’s nonpremises liability negligence claim for injuries sustained in breaking down a door to reach the defendant who was threatening to harm himself.

Lund v. Milford Hospital – The firefighter’s rule does not preclude a state trooper’s claim for injuries sustained in subduing a patient committed to defendant’s psychiatric care because the substitute complaint clarified that the alleged negligence was not “intimately connected with the very occasion for which the trooper was on the property.”

Advance Release Opinions – September 22

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Connecticut Appellate Court

The Appellate Court issued advance release decisions about civil protection orders, family law, and personal injury (but really appellate procedure).

Civil Protection Order

Sabrina C. v. Fortin – Civil protection order entered. On appeal, defendant claimed that trial court improperly (1) denied his motion to vacate or modify the protection order; (2) changed the basis for its denial in its subsequent articulation; (3) awarded plaintiff her attorney’s fees under the bad faith exception to the American Rule; and (4) granted plaintiff’s motion for a one-year extension of the protection order. The Appellate Court “agree[d] with the defendant’s third and fourth claims, and, accordingly, … remand[ed] the matter to the trial court with direction to vacate the award of attorney’s fees and to vacate the order extending the civil protection order to November 24, 2017.”

Family Law

Mason v. Ford – Defendant moved for postjudgment modification of child support to zero based on loss of income. Trial court modified support to zero, effective retroactively to a date preceding defendant’s service of the motion to modify, and found a 16 week arrearage terminating on the retroactive effective date. Defendant appealed. Appellate Court reversed, finding that under CGS § 46b-86(a) the retroactive effective date could not be earlier than the date of service of the motion to modify, and remanded to recalculate the arrearage.

Personal Injury (but really appellate procedure)

Pecher v. Distefano – Defense verdict in an action for personal injuries plaintiff sustained when she fell off her horse during a riding lesson. Plaintiff appealed claiming that trial court committed harmful error in improperly admitting a release and hold harmless agreement, and a picture of a sign, purporting to relieve defendant from liability. The Appellate Court concluded that plaintiff had failed to carry her burden of presenting an adequate record for the Court to review her claim that she was harmed by the allegedly improper evidentiary rulings.  More specifically, the Court explained that a harm determination requires, among other things, evaluation of the relationship of the improper evidence to the central issues in the case, particularly as highlighted in closing arguments. This evaluation is done in the context of the totality of the evidence. Since plaintiff did not provide the Appellate Court with the totality of the evidence or the closing arguments, the Appellate Court could not conduct a full and complete analysis of harm and had to affirm.

 

Advance Release Opinions – September 15

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Connecticut Appellate Court

Family Law

Fuller v. Baldino – Man sought visitation with a child of a woman with whom he had been in a relationship for some time. Trial court dismissed for lack of jurisdiction. Appellate Court affirmed, finding that although there was no dispute that man had a parent-like relationship with child, man had failed to plead or prove that the child would suffer any real or substantial harm other than emotional harm that stems from denial of visitation itself.

Franchise Law

Aldin Associates Limited Partnership v. Hess Corporation – Franchisee claimed that franchisor improperly charged too high a wholesale price for gas, which stifled franchisee’s ability to compete. Trial court denied trial by jury based on written jury waivers and found for franchisor, concluding that franchisee had failed to prove damages with sufficient certainty. Appellate Court affirmed the jury trial waiver but reversed on the damages issue.

Insurance

Amica Mutual Insurance Company v. Piquette – Declaratory judgment action about the scope of an insurance policy. Trial court granted summary judgment for insurer. Appellate Court framed the issue on appeal as “whether, under the terms of an automobile insurance contract providing coverage for bodily injury, a loss of consortium claim is entitled to a separate per person liability limitation from the principal bodily injury claim of another person from which the loss of consortium claim arises.” Appellate Court concluded that the policy language in Izzo was substantially similar so Izzo applies and Izzo says there is only one limit for the bodily injury and the loss of consortium.

Landlord-Tenant

Presidential Village, LLC v. Perkins – Trial court dismissed summary process action against Section 8 tenant because the pretermination notice was defective under federal and state law in that it specified an incorrect cure amount to avoid termination of the tenancy and included non-rent charges in the total past due rental obligation.  Appellate Court reversed, noting that only federal law applied to determining the sufficiency of the notice and the notice complied with federal law.

Medical Malpractice

Wilkins v. Connecticut Childbirth and Women’s Center – Defense verdict. Plaintiff appealed, claiming that the threshold interrogatory, which the jury answered in the negative, was confusing and overly restrictive given the allegations in the complaint and the proof elicited at trial.  Appellate Court essentially rejected each of those claims and affirmed.

Personal Injury

Gostyla v. Chambers – Car accident. Defense verdict. Plaintiff appealed because trial court permitted defense’s biomechanical expert to offer an opinion on causation, which was beyond his expertise. Appellate Court agreed that trial court improperly admitted the causation testimony but affirmed because plaintiff failed to provide an adequate record to determine whether the error affected the outcome of the trial.

Zoning

St. Joseph’s High School, Inc. v. Planning and Zoning Commission of the Town of Trumbull – High school wanted to install lights on its football field. P&Z denied special application because of a deadlock (2 votes in favor, 2 votes against, 1 abstention). High school appealed to Superior Court. Superior Court sustained the appeal, finding that the application satisfied the known and definite standards in the regulation, and could not be trumped by the general standard of “detrimental to the character of a residential district. The Appellate Court reversed. After a lengthy discussion, the Appellate Court concluded that “[u]nder Connecticut law, a zoning commission may deny a special permit application due to noncompliance with general standards contained in the zoning regulations.” So, Superior Court had applied an improper legal standard. The Appellate Court then concluded that, using the proper standard, there was substantial evidence in the record to support a denial. Said another way, there was substantial evidence that the high school had not met its burden of demonstrating that the lights would not be detrimental to the character of the neighborhood.

Advance Release Opinions – September 8

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Connecticut Appellate Court

The Appellate Court issued advance release opinions dealing with arbitration, breach of contract, fraud, mortgage foreclosure and personal injury.

Arbitration

A Better Way Wholesale Autos, Inc. v. Rodriguez – Car purchase gone bad. Arbitrator ordered the finance company to return the car to the dealer, among other things. Trial court denied dealer’s application to vacate arbitration award and granted purchaser’s and finance company’s motions to confirm it. Trial court also ordered dealer to pay finance company’s attorney’s fees in defending the arbitrator’s award. On appeal, dealer claimed arbitrator exceeded the scope of the submission in ordering the finance company to return the car because title was never at issue. Appellate Court affirmed, finding that the submission was unrestricted and title was at issue from the get go.  Dealer also challenged the award of attorney’s fees but Appellate Court declined to review these claims because dealer inadequately briefed them.

Breach of Contract

Luongo Construction and Development, LLC v. MacFarlane – What a mess. LLC sued customer for failure to pay on a contract to erect a modular home in separate actions – one in New Haven and one in Middletown. In the Middletown action, customer counterclaimed against LLC and cited in individual contractor for faulty workmanship and other claims. Middletown denied motion to dismiss based on prior pending action doctrine. LLC withdrew New Haven action. Middletown denied LLC’s motion for summary judgment. After courtside trial in Middletown, but before decision, LLC filed a second motion to dismiss based on prior pending action doctrine, claiming that New Haven action had been commenced first and customer could have litigated there before withdrawal. Court denied motion and issued judgment for customer on LLC’s claims and customer’s counterclaims. Appellate Court affirmed. Decision addresses prior pending action doctrine; summary judgment obligations; and punitive damages. Judge Flynn concurred with everything, except to the punitive damages award, as to which he dissented.

Fraud

Kenneson v. Eggert – In Action 1, plaintiff sued X and Y in tort. X tendered the claim to his Insurer who hired Lawyer to defend him. Jury returned a verdict for plaintiff against X for $67,556.07 and against Y for $380,037.38. Y did not appear at trial. Lawyer filed post-trial motions for X. Plaintiff and Lawyer later appeared for a hearing on the motions and a settlement conference. Plaintiff accepted $67,000 in settlement against X and signed a release and withdrawal as to X. Plaintiff later learned that she could not collect anything from Y because he was uninsured and had died earlier without assets. Plaintiff then moved to open the judgment to reinstate X as defendant, claiming that Lawyer was unfair and deceptive when she instructed plaintiff to sign the release without explaining its impact. Court denied the motion. Plaintiff started Action 2 against Lawyer for intentional misrepresentation and intentional nondisclosure and Insurer for vicarious liability. Trial court granted Lawyer and Insurer summary judgment. Appellate Court affirmed as to nondisclosure because Lawyer had no duty to plaintiff. Appellate Court reversed as to misrepresentation, finding that the denial of the motion to open did not collaterally estop plaintiff; there was a question of fact about whether the misrepresentation related to a past or existing fact, which could support a misrepresentation claim, or a future fact, which could not; and, though Connecticut has not yet recognized the sham affidavit rule (affidavit contradicting prior deposition testimony cannot support or defeat summary judgment), it would not be triggered in this case in any event.

Mortgage Foreclosure

McClancy v. Bank of America, N.A. – Borrowers sued bank on a host of theories surrounding a failed attempt to modify a mortgage loan. Trial court granted bank summary judgment as to all claims. Appellate Court affirmed, concluding that bank’s promise to review the borrowers’ modification application was not a promise to modify, a misrepresentation or a CUTPA violation.

Financial Freedom Acquisition, LLC v. Griffin – Reverse mortgage borrower’s executor made two claims on appeal. First, executor claimed that substitute plaintiff had failed to make out a prima facie case at trial because the substitute plaintiff’s own evidence showed that someone other than the substitute plaintiff owned the loan. Appellate Court affirmed, concluding that under federal and state banking law, and state corporation law, a series of corporate transactions only resulted in a name change of the substitute plaintiff, not a change in loan ownership. In other words, the substitute plaintiff still owned the loan; it’s just that the substitute plaintiff had a new name. Second, executor claimed that substitute plaintiff breached covenant of good faith and fair dealing by declining to extend the repayment date so that the executor could take advantage of the option of selling the house to repay the loan. Appellate Court affirmed, concluding that the covenant applied only to a discretionary application or interpretation of a contract term and there was no discretionary application or interpretation of the repayment date.

Personal Injury

Dinino v. Federal Express Corporation – Worker sued employer and co-worker for injuries sustained when he fell into a gap between the loading dock and the truck he was unloading. He claimed that the motor vehicle exception to worker’s compensation exclusivity applied to his claim against his co-worker, who had parked the truck; and that the intentional creation of a dangerous work condition exception applied to his claim against his employer. Trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact that neither exclusion applied. Appellate Court affirmed in a detailed 18-page opinion.

 

 

 

Advance Release Opinions – August 31

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Connecticut Appellate Court

Medical Malpractice

Simmons v. Weiss – First judge dismissed medical malpractice action for failure to file a written opinion of a similar healthcare provider. More than four months later, plaintiff filed a motion to open the dismissal. Second judge concluded that first judge’s dismissal was improper because complaint included a claim for lack of informed consent, which did not require a written opinion of a similar healthcare provider. Second judge opened the dismissal as to the lack of consent claim. Appellate Court reversed, concluding that no exception to the four month limitation on opening judgments applied, including the equitable exception because the judgment did not “shock the conscience.”

Divorce

Dejana v. Dejana – Postjudgment motion for contempt for failure to pay the correct amount of unallocated alimony and child support under separation agreement incorporated into dissolution judgment. At the time of judgment, defendant had three sources of income: base salary, bonus and a stock incentive plan. Settlement agreement gave plaintiff a percentage of base salary and bonus and gave defendant the right to use stock incentive plan to pay for the minor child’s college education. After defendant fully paid for the education with the stock incentive plan, plaintiff claimed that “bonus” included the stock incentive plan such that defendant could pay tuition from the plan only after paying plaintiff her share. Trial court denied the claim. Appellate Court affirmed, concluding that the separation agreement unambiguously excluded the stock incentive plan from the unallocated alimony and child support calculation.

Lugo v. Lugo – Postjudgment motion to modify child custody. Trial court awarded sole custody to plaintiff. Defendant appealed, claiming lack of due process because there was insufficient notice of a claim for, or that the court might award, sole custody to plaintiff. Appellate Court affirmed, finding that defendant had sufficient notice that custody was in issue.

Advance Release Opinions – August 25

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Connecticut Appellate Court

Rockhill v. Danbury Hospital – Plaintiff was injured when she tripped on an obstacle in a pedestrian walkway and fell. Judgment for plaintiff after a trial to the court. The Appellate Court rejected defendant’s invitation to impose a firm “trivial defect” rule. The Appellate Court also rejected defendant’s claims that plaintiff had failed to prove the defect actually caused her injuries and that not all of plaintiff’s bills were related to the fall. Affirmed.

Worker’s Compensation Survivor Benefits

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chemical barrel

No separate claim is required for worker’s compensation survivor benefits, according to a Connecticut Supreme Court opinion to be officially released on February 2, 2016.

In McCullough v. Swan Engraving, Inc., two years after he left the job, the employee was diagnosed with an occupational disease. He timely filed a claim for worker’s compensation benefits. He died from the disease before his claim was accepted or any benefits were paid. The employee’s widow filed a claim for death and survivor’s benefits. The worker’s comp carrier eventually accepted the decedent’s claim for benefits. The worker’s comp commissioner conducted a hearing on the widow’s claim. The carrier argued the claim was untimely, having been filed more than a year after death and more than six years after diagnosis. The widow argued that the timely filing and acceptance of her husband’s claim satisfied the limitations period for all claims. The commissioner agreed with the widow. The carrier appealed to the worker’s compensation board, who concluded that the widow’s claim was untimely. The Supreme Court reversed on the widow’s appeal.

Arguments on Appeal

The widow argued that her claim was not time-barred by CGS § 31-294c because her husband’s timely notice of claim satisfied the statute and there is no requirement that she file a separate claim.

The carrier offered three arguments in opposition: (1) Section 31-294c(a) required the widow to file a separate claim for survivor’s benefits within the time provided in the statute; (2) The court should defer to the board’s “time-tested” approach of interpreting § 31-294c as requiring a separate, timely notice of claim; and (3)  Section 31-294c must be read with CGS § 31-306b, which in the carrier’s view requires a dependent to comply with the one year limitations period in § 31-294c.

Supreme Court’s Conclusions

The Supreme Court concluded that the plain language of § 31-294c rendered it inapplicable to the facts of this case and required only one notice of claim in any event. The court also noted that there was no provision anywhere in the entire act requiring a survivor to file a separate claim, much less providing a limitations period for such a claim.

As to the board’s time-tested approach, the court cited its own precedent: ‘‘Even if time-tested, we will defer to an agency’s interpretation of a statute only if it is ‘reasonable’; that reasonableness is determined by ‘[application of] our established rules of statutory construction.’’’ The court concluded that the board’s interpretation was not reasonable under traditional rules of statutory construction and declined to defer to it.

With respect to § 31-306b, the court noted that the statute provides, as follows: ‘‘The failure of an employer or insurer to comply with the notice requirements . . . shall not excuse a dependent
of a deceased employee from making a claim for compensation within the time limits prescribed by subsection (a) of section 31-294c . . . .’’ The court rejected the carrier’s argument, saying that “the provisions of § 31-306b (c) to apply only in those situations wherein an employee is receiving workers’ compensation benefits from the employer prior to filing an official claim, such as cases where a collective bargaining agreement requires that such benefits be paid immediately.” Since this wasn’t that situation, § 31-306b did not apply.

Impact

The impact will be limited by what seems to me are the factually unique circumstances of the case. The fact that the worker’s compensation carrier accepted and paid the worker’s claim after the worker died seemed to factor heavily into the court’s decision that the widow did not have to file a separate survivor’s claim. I don’t think that happens too often.

About the Photo

The decedent was a photo engraver and his work exposed him to toxins. He developed disabling pulmonary fibrosis from this exposure and it ultimately killed him. The photo is of a rusting chemical barrel.

Worker’s Compensation Exclusivity

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police carThe motor vehicle exception to the worker’s compensation exclusivity provision did not apply to a police officer’s negligence action against a fellow officer, according to a Connecticut Appellate Court opinion to be officially released on February 2, 2016.

The facts in Rodriguez v. Clark are a little unusual. Officer Rodriguez was breaking up a physical alternation and getting the participants under control. Officer Clark, and his K-9 partner, Niko, arrived as backup as did other officers. Officer Clark put his police cruiser in park, got out, and closed the door. He left the engine running. Apparently, Niko’s services weren’t immediately necessary, so Clark left him in the car with the window open (it was July).  Niko, however, didn’t know his services were unnecessary. He left the cruiser through the open window and got involved in the fracas. Unfortunately, he went after the wrong guys. He severely injured Rodriguez’ leg and nipped one of the other officers as well.

Rodriguez sued Clark in negligence and under the dog bite statute. Mrs. Rodriguez brought corresponding loss of consortium claims against Clark.

Clark moved to strike the complaint based on the worker’s compensation exclusivity provision. The Rodriguez’ claimed that they were within the exception to the exclusivity provision for “action[s] … based on the fellow employee’s negligence in the operation of a motor vehicle.” The trial court disagreed and struck the complaint.

Arguments on Appeal

No surprise here. The Rodriguez’ argued that the worker’s compensation exclusivity provision did not bar the action.

Appellate Court’s Conclusions

The Appellate Court affirmed, adopting the trial court’s memorandum of decision on the motion to strike. The trial court essentially concluded that Clark was not “operating a motor vehicle” when he left Niko in his parked cruiser with the window open.

Impact

The trial court distinguished this case from several cases where the motor vehicle exception applied to a parked vehicle that was not being driven at the time of the injury. Now we have an example of an injury too far removed from the parking to qualify for the exception.

About the Photo

Case is about police officers and a police car.