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Advance Release Opinions – Appellate Court – August 31

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Reviews of Connecticut Appellate Court advance release opinions about divorce, insurance, and worker’s compensation.

Divorce

Merk-Gould v. Gould – Appellate Court reversed alimony award and division of certain investments because trial court’s finding as to defendant’s earning capacity was clearly erroneous and trial court abused its discretion in valuing the investments at acquisition cost, rather than value at date of dissolution. Because the alimony award was interwoven with everything else, the remand requires the trial court to reconsider all financial and property orders.

Insurance

Vaccaro v. D’Angelo – Vaccaro was Boileau’s lawyer in a personal injury action. D’Angelo was Boileau’s chiropractor who had a letter of protection. After the case settled, Boileau disputed whether he had to pay D’Angelo for treatments that exceeded the maximum number under Boileau’s health insurance plan. Boileau said that he didn’t have to pay because the provider contract between D’Angelo and Boileau’s health insurance plan required D’Angelo to obtain Boileau’s acknowledgment of financial responsibility before each extra treatment and D’Angelo did not do that. Vaccaro started an interpleader action. Trial court found for D’Angelo. Appellate Court affirmed, concluding that the acknowledgment form was only required for non-covered services, and treatments that exceeded the maximum number were not “non-covered services.” Boileau had some other claims too, but Appellate Court declined to consider them as inadequately briefed.

Worker’s Compensation

Diaz v. Department of Social Services – Dueling doctors on the question of whether lack of proper ergonomics at the workplace, or pre-existing conditions unrelated to the employment, triggered Diaz’s back surgery. Commissioner dismissed. Board affirmed. Appellate Court also affirmed, finding that (1) board was bound to accept commissioner’s decision as to which medical evidence he found more persuasive; (2) board properly affirmed commissioner’s denial of Diaz’s motion to correct his findings because Diaz really just asked the commissioner to substitute her conclusions for his own; and (3) board did not abuse its discretion in denying Diaz’s motion to submit additional evidence because that additional evidence was not new.

Advance Release Opinions – May 11 – Appellate Court

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Reviews of Connecticut Appellate Court advance release opinions about child support, civil procedure, divorce, insurance, medical malpractice, and underinsured motorist benefits.

Child Support

Asia A. M. v. Geoffrey M. – This is one that I normally would not review, but I found it interesting. Geoffrey executed a written acknowledgment of paternity under CGS § 46b-172(a)(1). More than two years later, state filed a petition for support against Geoffrey in Asia’s name. Geoffrey then moved to open the paternity acknowledgment under § 46b-172(a)(2) for fraud, mistake of act, and duress, claiming essentially that he signed it only because Asia had lied to him that he was the father; a DNA test proved that he was not the biological father; and it was in the child’s best interests to establish the biological father. Family support magistrate concluded that Geoffrey failed to establish any of the statutory bases for opening the acknowledgment – fraud, mistake, or duress – because the evidence showed that he knew that he was not the biological father when he signed it. But, magistrate nonetheless opened the judgment, concluding that magistrates have the inherent authority to open judgments in the child’s best interests. Trial court affirmed on the state’s appeal. Appellate Court reversed because (1) the statutory grounds are the only grounds for opening a judgment deriving from a § 46b-172(a)(1) paternity acknowledgment; and, redundantly in my view, (2) magistrate did not have authority to open the acknowledgment in the best interests of the child. Judge Keller concurred to suggest amending the paternity acknowledgment statute to require DNA testing before an acknowledgment could be accepted.

Battistotti v. Suzanne A. – Trial court awarded Suzanne sole custody; gave Battistotti, a New York resident, parenting time that had to be spent in Greenwich; and ordered Battistotti to pay child support in the amount suggested by the guidelines. On appeal, Battistotti claimed that the trial court should have deviated from the support guidelines to account for his additional expenses in maintaining a Greenwich apartment to comply with the visitation order. Appellate Court agreed, and remanded for a new hearing on child support. Battistotti also claimed that the trial court abused its discretion in restricting his parenting time to Greenwich. Appellate Court disagreed, and affirmed on that point.

Civil Procedure

Plainville v. Almost Home Animal Rescue and Shelter, Inc. – Town seized animals from defendant under a criminal search and seizure warrant and tried recover its animal care expenses from defendant under negligence per se and unjust enrichment theories. Trial court granted defendant’s motion to strike both counts. Appellate Court affirmed, finding that (1) Town was not an intended beneficiary of CGS § 53-247 so that statute was not a basis for Town’s negligence per se claim; (2) CGS § 22-329a provided Town with an adequate remedy for recouping its animal care costs so it could not recover in unjust enrichment; and (3) trial court did not apply an improper standard in deciding the motion to strike.

Divorce

Thomasi v. Thomasi – Wife and husband had separate appeals. In wife’s appeal, parties could not agree on the QDRO giving wife half of the “marital portion” of husband’s pension because they could not agree on the method of calculation. Even though both methods were acceptable, and the dissolution agreement did not specify which one to use, trial court found the agreement unambiguous, and accepted the coverture method favored by husband, instead of the subtraction method favored by wife. Appellate Court found that although “marital portion” was not a patent ambiguity since everyone understood generally what it meant, it was a latent ambiguity since there are multiple ways to calculate it. In other words, just because everyone agreed that the cat was to be skinned, didn’t mean that they agreed on how to skin it. The latent ambiguity required reversal

In husband’s appeal, trial court found that husband’s job loss was his own fault and denied his motion to reduce alimony. Appellate Court reversed on that point, finding that the record did not support the trial court’s conclusion. But Appellate Court affirmed trial court’s determination that husband’s obligation to pay pension benefits to wife started on the date of dissolution, and was not delayed by the delay in determining the marital-portion calculation method.

Insurance

General Ins. Co. of America v. Okeke – Some cases break your heart not because of the court’s ruling, but because of the facts that led the parties to litigation. This is one of those cases. Fifteen year old Michael allegedly assaulted, stabbed, and beat an elderly woman, in her home. The woman sued Michael and his mother, Agatha, in separate actions. Agatha’s homeowner’s insurer initially appeared for Michael, but then withdrew his appearance. It appeared for Agatha under a reservation of rights. Michael was defaulted for failure to appear. After a hearing in damages, the court awarded the woman more than $407,000 in Michael’s case. While the woman’s actions were pending, Agatha’s homeowner’s insurer brought this declaratory judgment action seeking a decree that it has no duty to defend or indemnify Michael or Agatha. Trial court granted the insurer’s motion for summary judgment, and decreed that it had no duty to defend or indemnify either defendant. Appellate Court affirmed in a per curiam opinion adopting the trial court’s memorandum of decision.

Medical Malpractice

Ugalde v. Saint Mary’s Hospital, Inc. – Appellate Court found that trial court (1) properly dismissed claim for lack of personal jurisdiction because opinion letter was deficient for want of doctor’s qualifications and plaintiff could not amend it because statute of limitations had expired; and (2) properly denied plaintiff’s motion to re-argue the denial of her motion to set aside the nonsuit that entered for her failure to comply with discovery.

Underinsured Motorist Benefits

Puente v. Progressive Northwestern Ins. Co. – Puente had an LLC, and the LLC had an auto insurance policy. Puente was hit after exiting the LLC’s truck. Trial court granted insurer summary judgment, finding that there was no dispute that Puente was not a named insured, and that he was not “occupying” the truck when he was hit because he wasn’t in physical contact with it. Appellate Court affirmed.