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Advance Release Opinions - Review and Analysis

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Connecticut Supreme Court Opinions - Analysis and Impact

Advance Release Opinions – Supreme Court – September 28

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Review of a Connecticut Supreme Court advance release opinion about taxation.

Taxation

Dish Network, LLC v. Commissioner of Revenue Services – Dispute over whether earnings from DVR services and sale/lease/installation/maintenance of equipment were subject to taxation under the statute taxing gross earnings from transmitting satellite TV programming, and whether Dish Network, after failing to challenge audit results, could nonetheless challenge the amount of the tax for the audited periods using a tax overpayment procedure. Trial court said that the overpayment procedure was appropriate notwithstanding Dish Network’s failure to challenge the audit; earnings from DVR services were subject to taxation; and earnings from sale/lease/installation/maintenance of equipment were not. Dish Network appealed and commissioner cross-appealed. Supreme Court affirmed the conclusions that (1) a taxpayer can seek a refund through the overpayment procedure even if taxpayer failed to challenge audit; and (2) earnings from sale/lease/installation/maintenance of equipment are not taxable. Supreme Court reversed the conclusion that earnings from DVR services are taxable.

Advance Release Opinions – Supreme Court – September 21

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Review of a Connecticut Supreme Court advance release opinion about personal injury (wrongful death).

Personal Injury (Wrongful Death)

Angersola v. Radiologic Associates of Middletown, P.C. – Though CGS § 52-555 provides a limitation period for a wrongful death claim, it is a statute of repose, not a statute of limitations, meaning that the court lacks subject matter jurisdiction over a wrongful death claim that is not brought within the limitations period. The continuing course of treatment and continuing course of conduct doctrines apply to the wrongful death limitations period. As in other cases where there is a dispute about the facts that determine whether the court has subject matter jurisdiction, there must be an evidentiary hearing, or at least discovery, to resolve the dispute. Here, Supreme Court concluded that there was a factual dispute about a continuing course of conduct, reversed the trial court’s dismissal for lack of subject matter jurisdiction, and remanded for an evidentiary hearing or limited discovery.

Advance Release Opinions – Supreme Court – September 7

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Reviews of Connecticut Supreme Court advance release opinions about eminent domain and governmental immunity.

Eminent Domain

Hartford v. CBV Parking Hartford, LLC – Supreme Court confirmed that Hartford underpaid – by some $2.8 million – for property it condemned near what was to become Dunkin Donuts Park. Supreme Court did reverse the trial court’s post-judgment interest award, finding that because the trial court did not award interest in its original judgment, CGS § 37-3c allowed interest only at the default rate, not a “reasonable and just” rate.

Governmental Immunity

Smith v. Rudolph – Plaintiff does not have a right to a jury trial for a car accident with a state-owned vehicle because the statute waiving sovereign immunity for such claims (CGS § 52-556) does not expressly provide for it.

 

Advance Release Opinions – Supreme Court – August 17

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Review of a Connecticut Supreme Court decision about class actions.

Class Actions

Standard Petroleum Co. v. Faugno Acquisition, LLC – Dispute between gasoline supplier and buyers. Trial court granted buyers class certification. Supreme Court affirmed, finding that trial court did not abuse its discretion in concluding that all of the class certification prerequisites were met, having performed the required “rigorous analysis” to the prerequisites of Practice Book § 9-7 (numerosity, commonality, typicality, and adequacy of representation) and § 9-8(3) (predominance and superiority).

Advance Release Opinions – Supreme Court – August 9

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Reviews of Supreme Court advance release opinions about medical malpractice.

Medical Malpractice

Gagliano v. Advanced Specialty Care – There was sufficient evidence for jury to find that surgical resident was hospital’s actual agent, making hospital vicariously liable for resident’s malpractice.

Levin v. State – While on an approved home visit from a state mental-health facility, patient stabbed his mother to death. Claims commissioner granted mother’s administratrix permission to sue state for medical malpractice. Trial court struck the complaint. Supreme Court affirmed, finding that plaintiff’s claim violated Jarmie, which bars medical malpractice claims by nonpatients. And, even if plaintiff’s claim sounded in ordinary negligence as opposed to medical malpractice, it exceeded the scope of permission to sue that the claims commissioner had granted and thus the court lacked subject matter jurisdiction over it.

Advance Release Opinions – Supreme Court – August 3

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Reviews of Connecticut Supreme Court decisions about divorce, employment, and underinsured motorist benefits.

Divorce

Shirley P. v. Norman P. – Plaintiff sought a divorce after accusing defendant of sexually assaulting her. While the action was pending, defendant was convicted of several criminal offenses arising from the alleged assault. Though those convictions were on appeal, the matrimonial court gave them preclusive effect under collateral estoppel, and entered a property division award that heavily favored plaintiff. Defendant appealed the property award, claiming that the convictions were not preclusive because they were still on appeal. While the appeal of the property award was pending, the Appellate Court reversed the convictions and the Supreme Court affirmed. Supreme Court then reversed the property award, finding that under United States Supreme Court precedent, a second judgment based on the preclusive effect of a first judgment must be reversed if the first judgment is reversed.

Employment

Trinity Christian School v. Commission on Human Rights and Opportunities – Former female employee filed a claim with CHRO alleging that Trinity unlawfully terminated her employment on the basis of  her sex, marital status, and pregnancy. Trinity moved to dismiss, claiming that it was immune from suit under CGS § 52-571b, which bars the state from burdening any religious belief. CHRO denied the motion. Trinity appealed to Superior Court, re-asserting its immunity argument and adding that its immunity permitted an interlocutory appeal of what would otherwise be a nonfinal order of the CHRO. Superior Court disagreed, finding that the statute provided a special defense, not immunity from suit. Supreme Court affirmed for the same reason.

Underinsured Motorist Benefits

Tannone v. Amica Mutual Insurance Company – This is a good one. Two pedestrians hit by an authorized driver of a rental car. Driver and lessee were underinsured. Rental agency was self-insured. Pedestrians made an underinsured claim on their policy. Amica denied it because the policy, as permitted by state agency regulation, excluded underinsured benefits when the owner of the car is self-insured. The Supreme Court in 1999 had concluded that the regulation was not against public policy because self-insureds had to prove their ability to pay judgments when liable, making underinsurance unnecessary. In other words, the exclusion was valid because a “self-insured” could not be underinsured. In this case, the Supreme Court noted that Congress had passed the Graves Amendment, which makes rental car companies immune from vicarious liability for injuries caused by their underinsured lessees. So, since the injured party no longer can recover from a self-insured car rental agency, the exclusion is invalid because it leaves the injured party without a remedy. Supreme Court reversed the trial court’s summary judgment for defendant and remanded for further proceedings.

Advance Release Opinions – Supreme Court – July 27

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Reviews of Connecticut Supreme Court advance release opinions about attorney discipline and worker’s compensation.

Attorney Discipline

D’Attilo v. Statewide Grievance Committee – D’Attilo started an action in Superior Court (1) seeking a writ of mandamus directing local grievance panels to reverse their dismissals of grievance complaints that D’Attilo had filed against five lawyers; and (2) asking Superior Court to oust the Statewide Grievance Committee and take control of grievances still pending against two other lawyers. Superior Court dismissed the action for lack of standing because D’Attilo was neither statutorily nor classically aggrieved. Supreme Court affirmed, adopting Superior Court’s memorandum of decision.

Worker’s Compensation

Callaghan v. Car Parts International, LLC – Prior to 2011, if an injured worker recovered from a third-party, the employer was entitled to be reimbursed from that recovery for any worker’s compensation benefits that the employer had paid to the injured worker. If any of the recovery remained after reimbursing the employer, the employer enjoyed a “moratorium” on payment of benefits in the future, up to the amount of the remaining recovery. In 2011, the legislature amended the statute, CGS § 31-293(a), to provide that one-third of any recovery from a third-party “shall inure solely to the benefit of the employee.” In other words, the employee is entitled to one-third of any recovery from a third-party. The question on appeal was whether the moratorium applied to that one-third. The Supreme Court confirmed that it does not. The employee gets to keep the one-third regardless of whether the employer pays any future benefits.

Advance Release Opinions – Supreme Court – July 20

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Reviews of Connecticut Supreme Court advance release opinions about administrative law and civil procedure.

Administrative Law

Kuchta v. Arisian – I list the topics alphabetically, and though I’m not sure that this case is really about administrative law, I wanted it to be first since it was in the news. Arisian hired Baybrook Remodelers, Inc. for some home improvements. She later put up a sign on her property confirming, “I Do Not Recommend Baybrook.” She also put up two other signs graphically (in the bar graph sense) representing, under the caption “BAYBROOK REMODELERS’ TOTAL LAWSUITS,” the number of cases in which Baybrook was supposedly a party. Kuchta, Milford’s zoning enforcement officer, ordered Arisian to remove the signs, claiming that they violated zoning regulations on the size, height, and number of signs. When Arisian did not comply, Kuchta sought an injunction in Superior Court. Arisian’s special defense was that Milford lacked authority to regulate her signs under CGS § 8-2 because they were not “advertising signs.” Trial court agreed that the signs were not advertising and denied the injunction. After lengthy analysis, the Supreme Court confirmed the signs were not “advertising signs” under § 8-2, which it defined as “any form of public announcement intended to aid directly or indirectly in the sale of goods or services, in the promulgation of a doctrine or idea, in securing attendance, or the like.”

But that’s not all. Kuchta had also sought to enjoin Arisian from occupying the property until she obtained a new certificate of occupancy, which required her to submit a new as-built plot plan. Arisian, of course, had been relying on Baybrook to do that. And, Baybrook, of course, did not. At the time the case had gone to trial more than four years later, Arisian had submitted the as-built, but it reflected a zoning violation, so the building department declined to issue the certificate of occupancy. Trial court denied the injunction because the circumstances did not justify that extraordinary remedy, but fined Arisian $1,000 for taking more than four years to submit a proper as-built. Supreme Court affirmed.

Walgreen Eastern Company, Inc. v. West Hartford – Real property tax appeal. Assessor set fair market value at $5,020,000. Board of Assessment appeals affirmed. Walgreen’s appealed to Superior Court, alleging one count under CGS § 12-117a that it was aggrieved because the assessor overvalued the property; and one count under CGS § 12-119 that the assessment was manifestly excessive. Trial court heard expert testimony and, on the § 12-117a claim, set fair market value at $4,900,000, and ordered West Hartford to correct any overpayment. Trial court denied the § 12-119 claim. Supreme Court affirmed on both claims, finding that trial court properly determined property’s true and actual value, and Walgreen’s had failed to establish assessment was manifestly excessive.

Can anyone tell me the practical difference between § 12-117a and § 12-119? They both seem to give the court the authority to reduce the assessment. It is not clear to me what more you get if the assessment is manifestly excessive.

Civil Procedure

Mendillo v. Tinley, Renehan & Dost, LLP – Mendillo is a lawyer who represented the plaintiff in an employment action against her former employer, a not-for-profit, and the not-for-profit’s executive director, and the chairperson of its board. The Tinley firm represented the defendants. Mendillo apparently communicated with other putative members of the not-for-profit’s board about the not-for-profit’s counterclaim in the employment action. The trial court in the employment action agreed with the Tinley firm’s assertion that Mendillo had violated Rule of Professional Conduct 4.2, and issued a protective order precluding Mendillo from further contact with board members absent the Tinley firm’s consent. Mendillo filed a writ of error, which the Appellate Court dismissed. Supreme Court denied certification, and also denied Mendillo’s motion for reconsideration of that denial. Mendillo filed a second writ of error in the Supreme Court challenging the Appellate Court’s actions. Supreme Court dismissed the second writ, and denied Mendillo’s motion for reconsideration en banc. So, Mendillo filed a new action against the Tinley firm and the Appellate Court, asserting multiple grounds for a declaratory judgment, all essentially attacking the protective order in the employment action. Trial court granted Appellate Court’s and the Tinley firm’s motion to dismiss. Supreme Court affirmed, finding that Mendillo’s claims were nonjusticiable: No practical relief was available to Mendillo because his declaratory judgment action was nothing more than a collateral attack on the protective order in the employment action, which had been fully and finally adjudicated on the first writ of error by the Appellate Court’s decision and the Supreme Court’s denial of certification.

 

Advance Release Opinions – Supreme Court – June 1, 8, 22 and 29

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Reviews of Connecticut Supreme Court advance release opinions about civil procedure, election law, and worker’s compensation.

Civil Procedure

Samelko v. Kingstone Insurance Company – Kingstone is a New York insurance company that issued a business car insurance policy in New York covering a business located in New York and a vehicle garaged in New York. The coverage territory was the United States. Insured driver collided with the Samelkos in Connecticut. The Samelkos sued the insured. Kingstone declined to defend. Default judgment entered in the Samelkos’ favor, which Kingstone declined to pay. The Samelkos then exercised their subrogation rights and sued Kingstone. Trial court dismissed the action for lack of personal jurisdiction, finding that Kingstone had no contacts with Connecticut and thus no notice that it might be sued in Connecticut. Supreme Court reversed, finding that because the policy had a nationwide coverage territory (1) the contract was “to be performed” in Connecticut under our corporate long arm statute; (2) it was foreseeable that Kingstone would have to perform in Connecticut, which provided the necessary minimum contacts with Connecticut; and (3) it was fair and reasonable to require Kingstone to defend itself in Connecticut.

Election Law

Arciniega v. Feliciano – Reversed. Candidate 1 lacked standing to attack validity of petition that led to Candidate 2’s inclusion on the ballot in a primary election because Candidate 1 was not aggrieved “by the ruling of an election official” as the statute required. Specifically, though Candidate 2’s address was wrong on the petition, there was no statute requiring an election official to reject a petition containing an inaccurate address. Since there was no rejection requirement, there was no “ruling” in accepting the petition with the inaccurate address. Since there had to be a ruling before there could be standing to complain about the ruling, there was no standing.

Cook-Littman v. Board of Selectman – Reversed. Town’s charter, not state statute, set procedure for filling a vacancy on the board of selectman because it is a matter of purely local concern.

Worker’s Compensation

Williams v. New Haven – Worker received benefits, returned to work, but was ultimately terminated for worker’s compensation fraud. Worker filed a grievance, which the parties arbitrated under the collective bargaining agreement. Worker lost both the arbitration and the motion in Superior Court to vacate the arbitration award. Meanwhile, worker filed a statutory wrongful discharge claim under CGS § 31-290a with the worker’s compensation commission. City moved to dismiss, arguing that since worker was pursuing a statutory wrongful termination claim before the worker’s compensation commission instead of a “court of competent jurisdiction” as required by CGS § 31-51bb and Genovese, the arbitration collaterally estopped the wrongful termination claim. Commissioner denied the motion. Review board affirmed. Supreme Court also affirmed, finding that (1) “court of competent jurisdiction” includes worker’s compensation commission for purposes of § 31-51bb and Genovese; (2) Superior Court motion to vacate the arbitration award did not satisfy § 31-51bb’s requirement of judicial review of statutory claim; and (3) § 31-51bb and Genovese allow the worker to pursue the same or a substantially similar claim after the adverse arbitration decision.

 

Advance Release Opinions – May 11

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Reviews of Connecticut Supreme Court advance release opinions about civil procedure and worker’s compensation.

Civil Procedure

Meribear Productions, Inc. v. Frank – Reversed. Connecticut couple hired California company to stage their Connecticut home for sale. Payment dispute arose. Company obtained default judgment against couple in California. Company then started Connecticut action to enforce the foreign judgment, and for breach of contract and quantum meruit. Trial court found for Company against husband on the California judgment, for wife against Company on the foreign judgment, and for Company against wife on the breach of contract claim. Appellate Court affirmed. Supreme Court found that Appellate Court should have dismissed the appeal for lack of a final judgment against husband since the trial court did not determine the breach of contract or quantum meruit claims against him. Those claims are legally inconsistent, or mutually exclusive, with each other, but not with the foreign judgment claim. So, the judgment against wife on the breach of contract claim automatically disposed of the quantum meruit claim against her. But, the judgment against husband on the foreign judgment did not dispose of either breach of contract or quantum meruit against him, meaning there was no final, appealable judgment against husband.

Worker’s Compensation

MacDermid, Inc. v. Leonetti – Affirmed. While MacDermid’s employee, Leonetti suffered an on-the-job injury and filed a worker’s compensation claim. Five years later, and before the worker’s compensation claim was finally resolved, MacDermid discharged Leonetti. The parties entered into a severance agreement, under which MacDermid paid Leonetti some $70,000, and Leonetti released all claims against MacDermid. The worker’s compensation commission ruled that the release did not include Leonetti’s worker’s compensation claim. Supreme Court affirmed. While that appeal was pending, MacDermid started the instant action against Leonetti, essentially claiming through a variety of theories that if Leonetti wanted his worker’s compensation claim, he would have to give back the $70,000 severance payment. Jury found for MacDermid on its unjust enrichment claim. Supreme Court affirmed, finding that (1) MacDermid’s claim not barred by collateral estoppel because there was no identity of issues between the worker’s compensation matter and the unjust enrichment claim; (2) Leonetti failed to preserve for appeal his claim that the worker’s compensation act, the severance agreement, or public policy barred MacDermid’s claim; (3) Leonetti failed to adequately brief the harm that he claims to have suffered from improper jury instructions; (4) the general verdict rule bars Leonetti’s argument about the jury instructions in any event; and (5) Leonetti failed to challenge all of the trial court’s bases for excluding certain exhibits, and failed to adequately brief the harm he supposedly suffered from its exclusion of another.