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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 – April 6

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, mortgage foreclosure, noncompete agreements, and vicarious liability.

Civil Procedure

Ruiz v. Victory Properties, LLC – Plaintiff brought negligence claims against D1, and derivative fraudulent transfer claims against D2 and D3. D1, and D2 and D3, filed separate summary judgment motions and the trial court granted both of them. Plaintiff appealed the summary judgment for D1, but not the summary judgment for D2 and D3. Over the next four and a half years, Appellate Court reversed the summary judgment for D1, and Supreme Court affirmed that reversal. Back in the trial court, plaintiff moved to open the summary judgment against D2 and D3, arguing that the reversal as to D1 presented good cause for reviving the derivative claims against D2 and D3. Trial court denied the motion. Appellate Court affirmed because (1) Practice Book § 17-4, CGS § 52-212a, and the doctrine of finality of judgments all precluded opening a judgment more than four months after it became final for purposes of appeal; and (2) plaintiff did not argue that the four-month period should be tolled for any equitable reason. Appellate Court also found that the appellate stay under Practice Book § 61-11(a) (1) did not toll the four-month period because it precludes only proceedings to enforce or carry out a judgment, and a motion to open is not a proceeding to enforce or carry out a judgment; and (2) did not apply to the summary judgment for D2 and D3 because plaintiff did not appeal that judgment.

Mortgage Foreclosure

Bayview Loan Servicing, LLC v. Park City Sports, LLC – Mild yawn. Even if plaintiff failed to comply with standing order about federal loss mitigation affidavit, it did not deprive trial court of subject matter jurisdiction because that depends on statutes or the constitution, and standing orders are not statutes or even rules of practice. There were no issues of fact about application of mortgage payments; date of default or propriety of the notice of default; assignment of the note to plaintiff; or the validity of the federal loss mitigation affidavit. Appellate Court declined to review defendant’s claim that the trial court should have granted his petition for foreclosure mediation because it failed to present a record adequate for review.

Nationstar Mortgage, LLC v. Mollo – Trial court granted plaintiff’s motion for summary judgment as to liability even though the motion did not address defendant’s special defenses because plaintiff filed the motion before defendant filed his answer.  Appellate Court reversed, finding that trial court lacked authority to raise and consider, sua sponte, issues that plaintiff hadn’t raised, namely whether there fact issues about the special defenses.

Noncompete Agreement

DeLeo v. Equale & Cirione, LLP – Accounting firm’s partnership agreement included noncompete clause. DeLeo left the firm and began practicing on his own. He then sued the firm, claiming essentially that he was still a partner, was improperly excluded from the firm, and the court should dissolve the firm. The firm counterclaimed for breach of the noncompete agreement. Trial court found for the firm on DeLeo’s claims and on the firm’s counterclaims. Appellate Court agreed with DeLeo’s claim that the noncompete agreement was not a liquidated damages clause, but a restraint of trade subject to a reasonableness analysis. Since the trial court did not perform that analysis, Appellate Court reversed and remanded for that purpose. Appellate Court did consider, and reject, DeLeo’s other claims that (1) trial court found he was estopped to deny enforceability of noncompete agreement (it didn’t); and (2) firm waived noncompete agreement (it didn’t). Appellate Court also rejected what might have been DeLeo’s best argument because he had not raised it in the trial court and did not meet the requirements for plain error review. More specifically, on appeal, DeLeo claimed that trial court should have dissolved the “partnership” because, after he left, there was only one partner, and there is no such thing as a one-partner partnership. In rejecting this claim, Appellate Court noted that not only had DeLeo failed to raise it in the trial court, he was contradicting himself because his position there was that he was still a partner, making it at least a two-partner partnership.

Vicarious Liability

Fiano v. Old Saybrook Fire Company No. 1, Inc. – As he was leaving firehouse to go home to change for his high school yearbook photo, seventeen-year-old junior firefighter hit plaintiff with his car (plaintiff was riding a motorcycle). Plaintiff wanted to hold Fire Company vicariously liable. Appellate Court affirmed trial court’s summary judgment for Fire Company because junior firefighter was not acting within the scope of his duties when the accident happened.

Advance Release Opinions – March 29

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Review of the Connecticut Appellate Court’s advance release opinion about employment, which also touches on procedure.

Employment/Procedure

Sempey v. Stamford Hospital – CHRO gave Sempey a right to sue Hospital for discrimination within 90 days. Sempey timely started a three-count lawsuit, but none of the none of the counts was expressly for discrimination. Trial court granted Hospital’s motion to strike all three counts. Sempey repleaded a three-count complaint, but this time one of the counts was for discrimination.  Hospital filed a motion to strike all three counts, and a motion to dismiss for lack of subject matter jurisdiction directed at only the discrimination count. Before Sempey’s time to file another substitute complaint had expired, trial court dismissed not only the discrimination count, but the other two counts as well. Appellate Court affirmed as to the discrimination count, finding that (1) since the motion to dismiss was subject matter jurisdictional, trial court was correct to decide it before Sempey’s time to substitute complaint expired; (2) Sempey had asserted her discrimination claim outside the 90 day window of her right-to-sue letter, and made no claim that a tolling doctrine applied; and (3) relation back doctrine did not apply since Sempey’s original complaint did not put Hospital on notice of a discrimination claim. But, Appellate Court reversed as to the other two counts because (1) Hospital directed its motion to dismiss solely at the discrimination count; and (2) Hospital did not show, and trial court did not find, that repleading could not cure any deficiencies in the two counts.

Interpreting Collective Bargaining Agreements

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Snow

Arbitrators have wide latitude in interpreting collective bargaining agreements according to a new Appellate Court opinion to be officially released on January 26, 2016.

In Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199, the parties asked the arbitrator to determine whether an employment discharge was for just cause and, if not, the appropriate remedy. The employer-plaintiff had terminated the grievant (union member) for failing to timely report a claim of abuse of a nursing home patient. The employer had previously issued “final warnings” to the grievant for unrelated conduct. Two other employees were aware of the claim but did not report it. They were not discharged. The grievant grieved her termination and the union took the termination to arbitration pursuant to the collective bargaining agreement.

The arbitrator found there was no just cause because, of the three people that were aware of the claim, only the grievant actually reported it. Though she was late in doing so, the other two employees did not come forward at all. The arbitrator reinstated the grievant.

The employer filed an application to vacate the award and the union filed an application to confirm the award. The trial court denied the employer’s application and granted the union’s. The Appellate Court reversed the reinstatement, finding it contrary to public policy. The Supreme Court reversed and remanded to the Appellate Court to determine whether the trial court improperly denied the employer’s application to vacate the award. The January 26, 2016 decision is the opinion on remand.

Arguments on Appeal

The employer argued that the arbitrator improperly (i) failed to give dispositive weight to the employer’s “final warnings”; and (ii) added a term to the collective bargaining agreement by considering the grievant’s report of the incident a “mitigating factor.”

The employer also had a third argument that the arbitrator improperly added a procedural requirement to the collective bargaining agreement by refusing to consider grievant’s voicemail messages.  The opinion doesn’t really discuss the details. Apparently, the grievant left voicemail messages that the employer claimed contained damaging admissions. The arbitrator declined to consider the messages because the employer didn’t investigate them. The Appellate Court concluded that the third argument involve the same issue as the second argument and did not separately address it.

Appellate Court’s Conclusions

The issue that really was in dispute was whether the arbitrator changed the collective bargaining agreement by interpreting the collective bargaining agreement. The answer, of course, is “no.”

The court noted that the arbitrator was obliged to interpret and apply the agreement, subject to the prohibition on adding, deleting or modifying any of its terms. The court’s review was limited to whether the arbitrator showed “patent infidelity” to his obligation. The court will confirm the award if it “draws its essence” from the agreement.

The agreement permitted termination for “just cause.” But the agreement did not define just cause. Nor did the agreement define “final warning” or require discharge for an employee’s infraction while under a final warning.

Since the agreement didn’t provide the essential definitions, the arbitrator had to provide his own. There was no patent infidelity to the agreement in concluding that it was unjust to discharge an employee for meeting a reporting requirement, albeit untimely, where other employees entirely failed to meet the requirement — and were not discharged. It was not improper for the arbitrator to reject a “final warning” as dispositive because the agreement did not provide for it or make it dispositive.

Impact

If an employer wants a “final warning” to be a dispositive basis for a just cause discharge, it has to be spelled out in the employment agreement.

About the Photo

I finished this post on January 23, 2016, when it was snowing, a lot.