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Underinsured Motorist

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 – 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.