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CONTENTS Section 1 Supreme and Appellate Court Review Section 2 Appendix to Supreme and Appellate Court Review Section 3 1996 Legislative Report 1 SECTION 1 SUPREME and APPELLATE COURT REVIEW 2 SECTION 2 APPENDIX 3 SECTION 3 1996 LEGISLATIVE REPORT Gaffney, Bennett and Associates RECENT DEVELOPMENTS 001. Jury orientation reform legislation passed. Section 6 of P.A. 96-179 requires a court reporter to transcribe the judge’s comments to prospective jurors during the jury orientation procedure. The bill allows, but does not require, counsel to be present during the orientation. The legislation provides in part: All oral remarks made to the juror pool during the orientation of such pool which describe the responsibilities of jurors, describe the procedures in the courts and discuss the laws of this state shall be recorded in a manner approved by the Office of the Chief Court Administrator. The legislation further provides that in any jury case all parties or their counsel shall have the right to examine any written materials, any audio visual materials, and any recording or transcription of oral remarks made or given to the juror pool during orientation. The legislation is discussed in the 1996 Legislative Report. Public Act 96-179 appears in the appendix, p. A55; Section 6 is on p. A60. 002. Bystander emotional distress permitted under the rule of reasonable foreseeability where: 4 1. The bystander is closely related to the injured victim; 2. The emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct causing the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; 3. The injury to the victim is substantial, resulting in death or serious physical injury; and 4. The bystander’s emotional injury is serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response. 5 Clohessy v. Bachelor, 237 Conn. 31 (1996). In an unanimous en banc decision, the Supreme Court overruled Strazza v. McKittrick, 146 Conn. 714 (1959), and adopted the rule stated above. The court stated that it believed the time is “ripe to recognize a cause of action for bystander emotional distress.” The first conclusion the court reached is that bystander emotional distress is a reasonably foreseeable injury, and that public policy requires that it recognize a duty that the tortfeasor has to a bystander. Plaintiff was represented by CTLA member Robert I. Reardon. Joram Hirsch prepared and filed the amicus curiae brief for CTLA. Attorney Reardon has authored an article which will appear in the May/June 1996 Forum. It appears in the appendix, p. A50. 003. Berlinski v. Ovellette overruled: Insurance carriers may have subrogation rights against underinsured tortfeasor. Counsel should always attempt to obtain the consent of the underinsured carrier before settling the third-party liability case. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362 (1996). Michael Jainchill and Jon Berk have written an excellent analysis of the Westchester v. Allstate decision. By overruling Berlinski v. Ovellette, 164 Conn. 482 (1973) significant problems may be created for the practitioner. Recognizing this, the Forum requested its UM Associate Editor Michael Jainchill to review the decision for the May/June 1996 issue. The article that Mr. Jainchill and Attorney Jon Berk of Hartford prepared appears in the appendix, p. A40, and will also appear in the next issue of the Forum. It is required reading for all CTLA practitioners. 004. Spoliation of evidence: The trier of fact may draw an adverse inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party destroying it. Beers v. Bayliner, 236 Conn. 769 (1996) Personal injury action where the driver and passenger of the boat designed, manufactured and distributed by defendant claimed damages under the Product Liability Act, §52-572m et. seq. Plaintiffs claimed their injuries were caused by the defective condition of the boat and 6 asserted product liability theories of manufacturing defect, design defect, failure to warn and failure to test. The injuries to the plaintiffs occurred on August 30, 1987. The insurer of the plaintiffs boat assigned the technical investigation of the accident to a professional engineer who submitted a report of his investigation to the insurer on November 11, 1987. The plaintiffs brought their cause of action against the defendant in August of 1990. On November 8, 1994 the defendant moved for summary judgment, claiming that Beers had removed and disposed of the boats motor before bringing the action in August of 1990. The plaintiff Beers testified in his deposition that he retained possession of the boat and its part until the summer of 1990 or 1991, at which time he replaced the motor and kept it at his home “for a time” before giving it to a friend of his son “the following winter or early the following year.” In support of their motion for summary judgment the defendants submitted affidavits that numerous attempts were made to set up an inspection of the boat between July 21, 1988 and November 29 of 1989 which inspection was never scheduled by the plaintiffs attorney. The plaintiff submitted counter affidavits denying these claims. In a case of first impression the court adopted the rule of the majority of jurisdictions that have addressed the issue in a civil context, which is that the trier fact may draw an adverse inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. In doing so, the court rejected blanket approaches aimed at punishing the spoliators such as granting summary judgment or excluding a spoliators expert testimony. The court adopted a four part test to be applied by the trier fact in determining whether an adverse inference may be drawn against the party who has destroyed evidence: (1) The spoliation must have been intentional as opposed to inadvertent; (2) The destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. For example, the spoliation of a machine may raise an adverse inference with respect to the claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense; (3) The party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be noticed that the evidence should be preserved. The party who seeks the inference 7 must have taken all the appropriate means to have the evidence produced; (4) The jury, if it is the trier of fact, must be instructed that it is not required to draw the inference that the destroyed evidence would be unfavorable but that it may do so upon being satisfied that the above conditions have been met. The inference does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prime and facie case, although it may turn the scale when the evidence is closely balanced. The court noted that there are cases where summary judgment may be appropriate. For instance, if, as a result of the innocent destruction of evidence, whether intentionally or inadvertently, the plaintiffs as a matter of law could not sustain their burden of proving liability, then summary judgment may be appropriate. In this case the plaintiffs’ product liability claims were in part based upon design defects, for which examination of any similar model of motor would suffice, the plaintiffs ought to have been given an opportunity to prove liability. Plaintiffs had claimed that defendant had an obligation to plead spoliation as a special defense. This was rejected by the court. CTLA participated in this case as amicus curiae. 005. Notice of third party action under §31-293 proper when given before the return date. In cases where party has manipulated the return date to thwart the employer’s intervention, late intervention may be permitted. Rana v. Ritacco, 236 Conn. 330 (1996). Reversing the 1995 holding of the Appellate Court, 36 Conn. App. 635, 637-638, the Supreme Court held that the plaintiff’s notice was effective to trigger the 30-day limitation period of §31-293 even though the notice was given before the return date, but at the same time that the complaint was delivered to the sheriff. An action is brought once the writ, summons and complaint are served on the defendant. The Appellate holding that an action is not brought until a defendant has been served and the service has been returned to court was error. 236 Conn. at 338. The court recognized the Appellate Court’s legitimate concern that at the time notice is given the writ may not be returnable within the 30- day period. The court refrained from imposing the additional requirement that the Appellate Court imposed that service must be 8 returned to court before an action is considered “brought.” It stated (236 Conn. at 340): Rather, we adopt the suggestion proffered by the amicus curiae in its brief to this court to permit late intervention by a potential intervenor who can make a showing of actual prejudice arising out of the receipt of notice prior to the return of service to the court. A party who brings a third party action and properly notifies his or her employer of such action pursuant to §31-293(a) ordinarily will be permitted to pursue this action without the intervention of the employer if the employer fails to comply with the thirty day limit for intervening. If, however, the employee purposefully manipulates the time periods provided in §§31-293, 52-46a and 52-48(b) in order to create a situation in which an employer cannot intervene within thirty days because the action is returned to court after the expiration of the thirty days, the employee will not be permitted to claim that the employer’s right to intervene has abated. Steven Ecker of Cowdery & Ecker of Hartford filed the brief for CTLA as amicus curiae. 006. Action against employers who fail to carry workers’ compensation insurance authorized. This legislation allows an injured employee to bring a civil action in the Superior Court against his or her employer if the employer failed to carry workers’ compensation insurance in violation of §31-284. Public Act 96-65 is discussed in the Legislative Report, and appears in the appendix, p. A62. 9 007. Three justices required to certify cases for review. Section 8 of Public Act 96-179 (pp. A60-A61) increases the vote from 2 to 3 for the grant of petitions for certification to the Supreme Court. CTLA initially opposed this legislation on the basis that the Supreme Court, for the most part, sits as a court of 5, and ought to have one less than a majority for the grant of discretionary review, as is the practice across the country. It appeared, however, that since all 7 justices vote on all petitions, 3 votes represented a correct number. Based on this, CTLA withdrew its opposition to the legislation. 008. Miscellaneous legislation. (a) Public Act 96-231 (p. A68) caps the heart and hypertension benefits under §7-433c for police and firefighters with persons employed on July 1, 1996. Police officers and firefighters employed after that date will only have a workers’ compensation remedy. (b) Public Act 96-254 (p. A71) covers liability of partners of LLPs. This legislation preserves the pending Arthur Andersen causes of action against accountants, and requires a registered LLP which renders professional services to maintain liability insurance in an amount not less than $250,000. (c) Public Act 92-241 (p. A79) authorizes damages, costs and attorney’s fees up to $30,000 in CHRO discrimination cases. (d) Public Act 95-125 (p. A67) amends §31-294f by providing that all medical reports concerning any injury of an employee sustained in the course of his employment shall be furnished within 30 days after the completion of the reports, at the same time and in the same manner to the employer and the employee or his attorney. The statute had previously provided that only medical reports resulting from an examination requested by the employer or directed by the commissioner had to be furnished within 30 days. Now all reports have to be furnished in that time frame. 009. Workers’ compensation colas. On May 1, the CRB decided Gil v. Courthouse One, which reversed previous decisions relating to colas arising prior to October 1, 1991. No legislation was passed on this subject in light of the Gil decision, which is included in the appendix, p. A7. The claimant in Gil was injured on December 1, 1983 and has been totally disabled since February of 1984. She received cost of living adjustments every October 1 since she began receiving temporary total benefits. At the time of her injury, Karyn Gil’s average weekly wage was $131.96 and her compensation rate was $93.35. The Second Injury 10 Fund assumed responsibility for the case in November 1986. In December 1995 the Fund notified the claimant that pursuant to the CRB decision in Wolfe v. JAB Enterprises, Inc., 14 Conn. Workers Comp. Rev. Op. 127 (1995), a different method for calculation of the cost of living adjustment would be utilized. This method reduced claimant’s weekly payments from $259.11 to $158.02. The Fund had used the method of calculation set out by the CRB in Wolfe, and calculated the cost of living adjustment by taking the current maximum rate of $584.00 and dividing it by the maximum rate of $345.00 at the time of the plaintiff’s injury to obtain a percentage rate. The percentage rate was then multiplied by the claimant’s base compensation rate of $93.35. The question presented was whether this calculation was correct, or whether the claimant’s cost of living adjustment should reflect the flat dollar increase from 1984 through September 30, 1991, and the utilization of a percentage based increase from October 1, 1991. The trial commissioner refused to follow Wolfe and calculated the cost of living increases on the flat dollar amount, as stated above, and the Second Injury Fund appealed. The CRB re-examined its holding in Taylor v. P.J. Ladola’s, 12 Conn. Workers Comp. Rev. Op. 378 (1994) and Wolfe. The court noted that because its holding in Wolfe was based on its decision in Taylor, it began its analysis by reviewing its decision in Taylor. The Taylor panel reasoned that because the 1991 legislation merely affected the procedure for determining the cola calculation, it could be applied retroactively, and accordingly the calculation of colas for those injured before October 1, 1991 could be determined on the basis of the percentage annual change in the maximum rate. The CRB reversed Taylor, holding that the cola legislation was not procedural, but substantive, and could not be applied retroactively. The court went on to reverse not only Taylor but also Wolfe, and upheld the trial commissioner. The case is now on appeal to the Appellate Court. The rule as it now stands is: 11 1. All cases arising prior to 10/1/91: Cola is determined by the flat dollar increase. 2. All cases arising from 10/1/91 to 6/30/93: Cola is determined by the percentage rate increase. 3. Cases from 10/1/93: No cola 4. Left undecided: Whether percentage rate increase is the percentage of the base rate or the previous temporary total rate. 010. California’s stunning defeat of tort “reform;” Illinois’ successful constitutional challenge to similar legislation; and President Clinton’s veto of the Product Liability Reform Act of 1996 signal a major change in the public’s view of tort “reform” issues. On May 2, 1996 President Clinton vetoed the Product Liability Reform Act of 1996. His letter setting out his reasons for the veto will appear in the May/June issue of the Forum, and is reproduced in the appendix, p. A19. The stunning defeat in California of Propositions 200, 201, and 202 are especially significant. According to the Wall Street Journal (3/28/96, p. A16) the defeat of the tort “reformers” raises “questions about the prospects for nationwide tort reform.” An article and reprint of editorials on this issue from California Consumer Attorney publications will appear in the May/June 1996 issue of the Forum, and is also reproduced in the appendix, pp. A29. These developments, coupled with the successful constitutional challenge to the Illinois tort “reform” statute represent major victories for the consuming public. An article concerning the Illinois successful constitutional challenge will also appear in the next issue of the Forum and appears in the appendix, p. A23. The Winter 1996 Memphis Law Review (26 Memphis L. Rev. 493) contains a 462-page article on the Restatement of Products Liability planned for release next year by the American Law Institute. The article devastates the American Law Institute’s claim that the design defect requirement mandating that the consumer prove a reasonable alternative design before a manufacturer can be held liable is merely a restatement of controlling common law. The author, John F. Vargo, convincingly argues that this doctrine has been accepted in only two states. The article examines the controlling common law or statutory product liability law in all 50 states. A summary of this article is featured in the next issue of the Forum (May/June 1996) and is reproduced in the appendix (p. A35). On May 22, 1996 the Circuit Court of Cook County held that caps on non-economic damages in wrongful death actions, included in the Illinois Civil Justice “Reform” Act violated the state constitution’s 12 equal protection, special legislation, and right to jury trial provisions. The article that appears in the appendix (p. A23) covers the grant of partial summary judgment on other aspects of the statute, including the obligation of doctor-patient privilege, invasion of privacy with respect to medical records, and elimination of apparent agency between hospital and doctor. Several other issues remain to be decided, and the entire issue will be reviewed by the Illinois Supreme Court. The Illinois State Trial Lawyers Association, members of ATLA’s Legal Affairs and Constitutional Litigation Committees, and the staff of the ATLA Legal Affairs Department worked tirelessly to bring about this tremendous victory. ATLA plans to run its second “Constitutional Challenges in the States” workshop at its national convention in Boston at the end of July. 011. Do I need an attorney? Allstate and Progressive Insurance propaganda campaign against attorneys a complete fraud. Ask the same questions about physicians, and the absurdity of the insurance propaganda is apparent. Much controversy has been generated by Allstate and Progressive’s propaganda campaign attempting to discourage injured victims to seek legal advice. In 1995, then-President Bill Sweeney filed a complaint with Attorney General Blumenthal. Attorney General Blumenthal referred the matter to Sid Miller, Chairman of the CBA Committee on Unauthorized Practice of Law. Sid Miller in turn wrote back to Attorney General Blumenthal suggesting that the Statewide Grievance Committee was the proper forum for such a complaint. Attorney General Blumenthal also sent a copy of the complaint to the Insurance Department. On October 23, 1995, George Hummelman, Staff Counsel at the Insurance Department, sent a letter to President Robert Sheldon indicating that the Department did not find either the Allstate propaganda or similar literature put out by Progressive to be “misleading.” The studies by the Rand Corporation and the Insurance Research Group that Allstate relied upon were obtained and reviewed. The studies do not support the insurance propaganda unless taken out of context. Rather than litigate the issue at this time, CTLA has embarked upon a public relations campaign. President-elect Stewart Casper has written an article concerning this which has been widely circulated. Perhaps the most ingenious demonstration of the absurdity of the propaganda is a memo prepared by Attorney Neil Sutton of Cohen & Wolf in Bridgeport, captioned “Do I Need A Physician?” 13 You will find on the following pages Allstate’s propaganda statement sent to persons making claims who are not represented captioned “Do I Need An Attorney?” and CTLA’s response “Do I Need A Physician?” 14 DO I NEED AN ATTORNEY? 1) AM I REQUIRED TO HIRE AN ATTORNEY TO HANDLE MY CLAIM? No. In fact, each year Allstate settles claims directly with many accident victims with no attorneys involved in the claim settlement process. 2) WILL AN ATTORNEY MAKE THE CLAIM SETTLEMENT PROCESS FASTER FOR ME? A recent study by the Insurance Research Council found that people who settle insurance claims without an attorney generally settle their claims more quickly than those who have hired attorneys. 3) HOW MUCH ARE ATTORNEYS’ FEES AND WHO PAYS FOR THEM? Attorneys often take up to one third of the total settlement you receive from an insurance company, plus expenses incurred. If you settle directly with Allstate, however, the total amount of the settlement is yours. 4) IF I DON’T GET AN ATTORNEY NOW, CAN I STILL GET ONE LATER? You may hire an attorney at any time in the process. Under Connecticut law, in most cases, you have up to two years after your accident to file a court action against the at-fault party. Before you decide to see an attorney, you may wish to seek an offer with Allstate first. If an attorney believes he or she can achieve a higher settlement, you can then see whether the attorney is able to accomplish that. And, you may wish to hire an attorney on the condition that the contingent fee apply only to the settlement amount in excess of what Allstate offered to you without the attorney’s assistance. 5) SHOULD I SEEK THE ADVICE OF AN ATTORNEY? Whether you should retain an attorney is your decision. Allstate will not penalize you in any way for retaining an attorney. An attorney may be able to provide valuable advice, and may be important in complex or serious cases. Again, however, you may wish to seek an offer from Allstate, and when retaining an attorney, make a condition that the contingent fee apply only to the settlement amount in excess of what Allstate offered to you without the attorney’s assistance. 15 DO I NEED A PHYSICIAN? 1) AM I REQUIRED TO HIRE A PHYSICIAN TO ATTEND TO MY INJURIES? No. In fact, medical science has proven that most injuries -- from cuts and scrapes to fractured vertebrae and open head wounds -- will eventually heal by themselves. 2) WILL A PHYSICIAN MAKE THE RECUPERATION PROCESS FASTER FOR ME? A recent study by the Insurance Research Council (an unbiased scientific panel) found that people who do not seek medical attention for their injuries generally spend a shorter time suffering with any injuries. 3) HOW MUCH ARE PHYSICIANS’ FEES AND WHO PAYS FOR THEM? The amount physicians charge varies, but no matter what the charge, the physician must be paid either when service is rendered or out of your settlement. If you settle your Allstate claim without medical care, however, you will have no medical bills to pay, and the total amount of the settlement is yours to keep. 4) IF I DON’T GO TO A PHYSICIAN NOW, CAN I STILL GO LATER? You may go to a physician at any time in the process. Most Connecticut physicians will treat you as long as you have coverage or money. Before you decide to see a physician, you may wish to seek an offer with Allstate first. If the physician believes he can cure you after that, you can then see if the physician is able to accomplish that. 5) SHOULD I SEEK THE CARE OF A PHYSICIAN? Whether you should go to a physician is your decision. Allstate will not penalize you in any way for seeking medical care. A physician may be able to provide valuable advice, cauterize blood vessels, set broken bones, etc., and this may be useful in serious cases. Again, however, you may wish to skip medical care and seek an offer from Allstate, so you can keep all the money yourself. 16 012. Punitive damages and emotional distress damages may be taxed after June 30, 1996. Congress is likely too soon adopt legislation that will make monetary damages received for emotional distress and most punitive damages taxable. The bill, H.R. 3448, is part of the minimum wage legislation. It has passed the House and is currently before the Senate. §1605 of the bill, entitled “Repeal of Exclusion for Punitive Damages and for Damages not Attributable to Physical Injury or Sickness,” amends §104(a) of the Internal Revenue Code. This section currently exempts from income the amount of any damages received, whether by suit or agreement and whether as lump sums or as periodic payments, on account of personal injuries or sickness. The bill would amend this section by excluding most punitive damage awards from tax exemption. The bill would continue the tax exemption for punitive damages only in very limited circumstances, for example, wrongful death cases, or when, under state law, only punitive damages may be awarded. The bill also adds new language providing that “emotional distress shall not be treated as a physical injury or sickness” for purposes of the exemption from income taxation. If the legislation passes, not only do the cases have to be settled by June 30, but the money has to be paid by that date. 013. Client Protection Fund Revisited: A specific proposal. This editorial appears in the May/June Forum. Since the editorial was written the legislature has created a task force to study the issue, and the Connecticut Bar Association on June 3, 1996 referred the matter to its several committees and sections for review. CTLA believes that the proposal has the support of a wide majority of the bar. In the November/December 1995 issue of the Forum we published a proposal for a Client’s Protection Fund (13 Forum 458). That proposal was in the form of legislation creating a Client’s Protection Fund to be administered by a panel of five members appointed by the Chief Justice and the Chairpersons of the Judiciary Committees of the House of Representatives and the Senate. The proposal was generated by recent defalcations and lawyer misconduct resulting in losses to the public approaching $15 million. A variety of proposals surfaced besides the one put forth by CTLA. Brian Mahon, president of the Connecticut Bar Association, the organization which currently administers a Client Security Fund, appointed a Task Force to study issues related to the future of the CBA’s Client Security Fund, including its “viability as a Connecticut Bar Association entity, funding, controls and review of all current rules and regulations.” 17 CTLA was requested to participate on the CBA Task Force. President Sheldon in turn requested the Editor to serve as a member of this Task Force. After several meetings the Task Force made several recommendations to the House of Delegates of the Connecticut Bar Association. Edward Sheehy, then president-elect of the CBA, reported to the House of Delegates as chair of the Client Security Fund Task Force. The principal recommendation of the Task Force is: The judges of the Superior Court of the State of Connecticut adopt a rule of practice to provide that all attorneys duly licensed in the State of Connecticut shall pay a $100 annual fee to the Connecticut Bar Association for deposit into the Client Protection Fund to be established and maintained by the Connecticut Bar Association and to be administered by a Client Protection Fund Committee appointed by the Connecticut Bar Association to reimburse claimants for losses caused by the dishonest conduct of lawyers licensed to practice law in the State of Connecticut. CTLA, recognizing that its proposal presented an awkward separation of powers issue, and also recognizing that all lawyers have a common interest in this issue, fully endorsed the CBA Task Force Proposal. In fact, during the course of the Task Force’s meetings CTLA drafted a detailed proposal to implement the Task Force recommendation: a Client Protection Fund administered by the CBA but mandated by rule of court requiring each licensed attorney in this state to contribute $100 to the Fund. The CBA Task Force did not go so far as to endorse the detailed proposal that was drafted. Rather, it endorsed the concept, leaving the details to be worked out after the idea was accepted. We reprint that detailed proposal here. It seeks to add §§31C to 31K to the Practice Book. The proposal recognizes that even though the CBA is a voluntary bar association, due process requirements must be afforded if these rules of court are adopted. The leading case on this issue is Saleeby v. State Bar of California, 39 Cal.3d 547, 702 P.2d 525 (1985). California, unlike Connecticut, has an integrated bar. Much of the Saleeby decision is based on this fact, however, Saleeby outlines the due process requirements of a Client’s Protection Fund. The principles articulated are: 1. Applicants for reimbursement from a Client Security Fund must be afforded an opportunity to be heard and respond to the bar’s determination and the bar must issue sufficient findings to afford review. 2. The bar is not required to hold a formal hearing on the applicant’s request for reimbursement. It is required, however, to give the applicant an opportunity 18 to respond to the bar’s proposed disposition of the request for reimbursement. 3. The applicant is entitled to present information in support of his or her claim at the time the request is made, but is not entitled to any further information until the bar makes its final decision. 4. Although the bar is not required to make findings as formal as those required by a court, it must provide information sufficient to apprise interested parties and the courts of the basis of the administrative decision when it rules on an application for reimbursement. We have drafted the proposed rules with these procedural due process requirements in mind. We have also taken into consideration the manner in which the existing CBA Client Security Fund operates. We believe that the proposal is workable, will not create a new bureaucracy, will not cost the State any money, and addresses definitively a major problem that a few bad lawyers have brought about. Our impression is that the bar is in agreement on this issue. We need to act now and in a manner that will rectify the problem. The Client Security Fund as it now exists raises $550,000 per year by assessing the 11,000 CBA members $50. There are 23,000 lawyers licensed in this State. If all licensed lawyers were required to pay $100 to the CBA Fund, the funds generated annually would rise to $2.3 million. With this infusion of cash, the Client Protection Fund can make whole those claimants who are victimized by dishonest lawyers. If the problem in the future is reduced to a point where a $100 assessment can be reduced, the proposal has within it the flexibility to bring this about. It is up to the judges of the Superior Court to adopt the necessary rules to implement what the bar is in agreement on. The proposal set out here can serve as a blueprint. If the judges do not act, the proposed rules can be easily changed to proposed legislation. In fact, this has already been done. We recognize that there is strong sentiment among several lawyer-legislators that legislation in this area is inappropriate, and it is properly the realm of the rule-making powers of the judiciary. We agree. We also recognize that there is an urgent need for action, and that legislation will in all probability pass constitutional separation of powers muster. Lawyers now pay a legislatively-imposed $450 license fee. If that fee is constitutionally permissible, it is difficult to understand why a legislatively-imposed $100 mandatory contribution to a client protection fund would not be constitutionally permissible. In addition, in Bartholomew v. Schweizer, 217 Conn. 671, 682 (1991), the court’s most recent pronunciation on the issue, a statute will be upheld in the absence of a “demonstrated infringement on the 19 fundamental powers or responsibilities of a coordinate department of government.” If the legislature is compelled to act in default of judicial action, we believe that there would be no fundamental infringement of the judiciary’s powers, and that such legislation ought to pass constitutional muster. The following rules are a draft proposal to implement a Client Protection Fund. The draft rules propose a fund to be administered by the CBA, but mandated by rule of court, requiring each licensed attorney in the State to contribute $100 to the Fund. CLIENT PROTECTION FUND 31C DEFINITIONS (a). 1. “Administrator” means the person designated by the Connecticut Bar Association to administer the Fund. 2. “Client” means any person or entity, other than a governmental entity or agency, entering into an attorney-client relationship or fiduciary relationship with a lawyer. 3. “Committee” means the Client Protection Fund Committee of the Connecticut Bar Association. 4. “Fund” means the Client Protection Fund of the Connecticut Bar Association. 5. “Lawyer” means a person who, at the time of the conduct complained of, was licensed to practice law in this State. 6. “Claim” means the application to the Committee for recovery of a “Reimbursable Loss.” 7. “Claimant” means the one making a claim. 8. “Embezzlement” means the fraudulent appropriation of another’s money or property by a lawyer to whom it has been entrusted or into whose hands it has lawfully come, or the loss of money or property occasioned by the dishonest conduct of a lawyer. 9. “Reimbursable Loss” means a pecuniary loss caused by embezzlement (i) occurring after October 1, 1996, (ii) in Connecticut, (iii) by a lawyer, (iv) which arose out of and during the course of an attorney- client relationship or fiduciary relationship, which but for that relationship with the claimant the pecuniary loss could not have occurred. (b). For a pecuniary loss to be a Reimbursable Loss, the lawyer whose conduct is alleged to have caused the loss must either 20 (i) have been disbarred or suspended from the practice of law, or reprimanded for the specific conduct giving rise to the loss, (ii) have resigned from the practice of law, (iii) have died, (iv) have disappeared, (v) have been discharged from liability for the Reimbursable Loss in bankruptcy, (vi) have been found guilty of a crime which caused the Reimbursable Loss, or (vii) have been adjudicated mentally incompetent. (viii) A pecuniary loss may also be a Reimbursable Loss if it has been referred in writing by the Superior Court or the Statewide Grievance Committee to the Committee as an appropriate case for consideration. (c). “Reimbursable Loss” does not include any of the following: (i). loss covered by any bond, insurance, surety agreement or indemnity agreement, to the extent of the coverage of said bond, insurance, surety agreement or indemnity agreement; (ii). loss which results from any loan or investment transaction, unless the loan or investment transaction was a part of, and a direct result of, an attorney-client relationship; (iii). loss recoverable under any surety or fidelity bond or policy required by law but waived by a court of law, to the extent that such insurance would have applied. (iv). loss by a spouse or anyone related within the fifth degree of consanguinity or by affinity to the lawyer whose conduct is alleged to have caused the loss; (v). loss by a partner, employer, or associate of the lawyer whose conduct is alleged to have caused the loss; (vi). loss by any business or other entity in which the lawyer, whose conduct is alleged to have caused the 21 loss, has any interest or had any interest at the time of the conduct alleged to have caused the loss; 31D CLIENT PROTECTION FUND (a). The purpose of the Client Protection Fund is to promote public confidence in the administration of justice and the integrity of the legal profession by reimbursing losses caused by the dishonest conduct of lawyers licensed to practice law in the State of Connecticut occurring in the course of a lawyer-client or fiduciary relationship between the lawyer and the claimant. (b). The Connecticut Bar Association is authorized and directed to establish and maintain a Client Protection Fund to reimburse claimants for losses caused by dishonest conduct committed by lawyers licensed to practice law in the State of Connecticut. It shall appoint a Client Protection Fund Committee to administrate the Fund, and an Administrator to oversee its efficient operation. (c). All attorneys duly licensed in the State of Connecticut shall pay a $100 annual fee to the Connecticut Bar Association for deposit into the Client Protection Fund. (d). Reimbursement of losses shall be within the discretion of the Committee to the extent of funds available. The Committee shall first make a determination upon documentary evidence submitted and its own investigation. It shall then advise the lawyer and the claimant of the decision, and afford the claimant or lawyer a full hearing if reconsideration is requested. If funds are insufficient to pay a claim in full at the time the claim is adjudicated, the claimant may reapply in later years until the loss is paid in full, provided no subsequent claims shall be allowed if submitted more than two years from the adjudication of the original claim or the timely filed subsequent claim. The Committee has discretion under §6(b) to limit the amount of recovery of any claim. (e). A lawyer whose dishonest conduct results in reimbursement to a claimant shall be liable to the Fund for restitution. Disciplinary orders imposing a suspension or probation shall include a provision requiring the disciplined attorney to reimburse the Fund for any Client Protection payments arising from his or her conduct prior to the termination of the period of suspension or probation. Prior to filing a petition for reinstatement, a petitioner shall reimburse the Fund for all Client Protection payments arising from a petitioner’s conduct. The petition must be accompanied by a statement from the Administrator indicating that all such payments have been made. (f). The Committee shall allocate on an annual basis the amount of money in the Fund which may be used to pay claims. 22 (g). The Administrator and the Committee may make reasonable charges to the Fund to provide for administration of the Fund, provided however that all Committee members shall serve without compensation. (h). The Connecticut Bar Association shall maintain the Client Protection Fund at a level not to exceed $2,000,000. If at the beginning of each calendar year the claims pending against the Fund for the previous calendar year are less than the amount left in the Fund, the mandatory assessment for licensed attorneys may be reduced by a percentage determined by the Committee, and approved by the Chief Justice. 23 31E ADMINISTRATION OF THE CLIENT PROTECTION FUND. (a). The Committee shall consist of eighteen (18) members appointed by the president of the Connecticut Bar Association. Terms of the Committee members shall be for one year. (b). The Committee shall conduct meetings as frequently as required, set rules for voting, establish a quorum and establish other policies, procedures, and rules as required to carry out their duties and responsibilities as provided herein. (c). A member of the Committee who has or has had a lawyer-client relationship or financial relationship with a claimant or any lawyer who is the subject of a claim shall not participate in the investigation or adjudication of that claim. (d). Expenses of Committee members shall be reimbursed from the Fund. Expenses shall be limited to out-of-pocket travel and meal expense, and in no event shall a Committee member receive compensation for his or her services to the Committee. (e). The Administrator of the Client Protection Fund shall be appointed by the president of the Connecticut Bar Association. The Administrator shall serve without compensation, but may make reasonable charges to the Fund to provide for administration of the Fund, as provided in §2(g) hereof. 31F INVESTMENT OF THE FUND (a). All monies allocated to the Fund shall be held in a separate account in the name of the Fund, provided however that money allocated to the Fund may be co-mingled with other monies for investment purposes only. Such monies may be invested or reinvested in the same manner as funds of the state employees retirement system, and the interest arising from the investment shall be credited to the Fund. The Administrator of the Fund shall require that the interest earned on the Client Protection Fund shall be paid to an organization qualified under §501(c)(3) of the Internal Revenue Code of 1986. The Administrator is authorized to create such an entity if necessary. (b). This program shall not require the banking corporations or financial institutions receiving such funds, holding such accounts and paying interest thereon to the depositors of the account to perform any additional administrative functions or assume any additional responsibilities or obligations in connection with such program or the accounts so maintained. 24 31G ELIGIBLE CLAIMS (a). Amount. The amount recoverable by any one claimant for reimbursable loss in a single calendar year shall not be limited, except that the Committee may limit the amount paid in any calendar year based on the availability of funds, in which event the claimant may reapply in later years for the balance of the claim, subject to the time limitation set out in §2(d). (b). Conditions. For a claimant to recover a reimbursable loss, the claimant must show that reasonable efforts have been made to obtain reimbursement for the loss from the lawyer or from other reasonably available sources, including by way of example, the lawyer’s partner or partners, the lawyer’s firm, the lawyer’s estate, or any applicable bond or insurance. (c). Form and Time Limitation. The claimant shall submit a claim made under oath on forms provided by the Committee. A claim against the Fund must be made no later than two years from the date of the final event making the loss for which reimbursement is sought a reimbursable loss. (d). Procedure. 1. The lawyer shall be notified of a claim by sending a certified letter to the address on file with the clerk for Hartford County, as required by §26 of the Rules of Practice. 2. The Statewide Grievance Committee shall be notified by the Committee of every claim. 3. The Committee may review the records, decisions and reports of investigations by the Statewide Grievance Committee for the sole purpose of determining whether a claim should be granted. The Committee may conduct additional investigation in connection with any claim. 4. The Committee may request that testimony be presented. If testimony is requested, the claimant and the lawyer shall, upon request, be given a reasonable opportunity to be heard. The rules of evidence shall not apply except to the extent required to afford fundamental fairness to all parties. 5. A recommendation regarding any claim shall be determined on the basis of all information submitted to the Committee. Notice shall be given to the claimant and the lawyer of the Committee’s action. Such notices shall be given by mail to the claimant’s last known address and to the lawyer’s address on file with the clerk for Hartford County. 25 6. The Committee may, in its discretion, recommend payment of a reimbursable loss or any part of a reimbursable loss at any time, or may defer recommendations regarding payments of any or all reimbursable losses until the latter part of the calendar year to determine the total amount of reimbursable losses claimed in relation to the total amount of monies in the Fund. No claimant or any other person or entity shall have any vested right or interest in the Fund. 7. Payment from the Fund to a claimant shall be made only on condition that the claimant assign to the Connecticut Bar Association the rights of the claimant against the lawyer whose conduct caused the reimbursable loss in an amount equal to the amount of payment received by the claimant from the Fund plus any costs incurred by the Committee or the Connecticut Bar Association in recovering the amount of payment from the lawyer or the lawyer’s estate, personal representative, assign or successor in interest. This assignment shall provide that the claimant will cooperate in any proceeding commenced for recovery of the amount of payment. The Connecticut Bar Association or its assignee may bring such action for recovery of the amount of payment as deemed advisable. 31H DETERMINATION OF CLAIM (a). Payment of a claim shall be made only on affirmative vote of a majority of members of the Committee. The decision to pay a claim shall be reflected in an order of the Committee. (b). In determining the amount of any payment, the Committee may consider: 1. Monies available and likely to become available for payment of claims; 2. The size and number of claims presented and likely to be presented in the future; 3. The amount of a claimant’s loss compared with losses sustained by others; 4. The comparative hardship suffered by a claimant because of a loss; 5. The total amount of losses caused by the dishonest conduct of any one lawyer; 6. The culpability or negligence of the claimant contributing to the loss; 7. The extent which there is a collateral source for reimbursement to the claimant; 26 8. The effort made by the claimant to exhaust administrative and civil remedies; 9. Other factors as appear to be just and proper. (c). The Committee order shall be filed with the Administrator of the Fund, the Statewide Grievance Committee, and shall be sent to the claimant and the lawyer. For purposes of further proceedings, the time shall be computed from the date notice issues by the Committee of its order, which date shall appear on the first page of the order. 31I REQUEST FOR RECONSIDERATION (a). The claimant or the lawyer may within twenty days of the issuance of notice of the order request reconsideration of the order by filing a written request for reconsideration with the Administrator of the Fund. The request shall state the basis of the request for reconsideration and whether a hearing is requested. If no request for reconsideration is received within the twenty day period, the Committee’s order shall become final. If a request for reconsideration is received, the Administrator shall forward the request to the Committee. The Committee may assign the request to a panel designated by it to review the request. (b). If the request for reconsideration is referred by the Committee to a panel, the panel shall be composed of not less than two lawyers, may include not more than one non-lawyer, and may consist of a Reviewing Panel of the Statewide Grievance Committee. Members of the Committee may serve on such a panel. (c). At the Committee’s request, the panel shall review the order submitted by the Committee and the request for reconsideration. The panel may consider any and all information obtained by the Committee from the claimant, the lawyer, or during its investigation, and may request the Committee to conduct additional investigation. The panel shall convene a hearing at which both the claimant and the lawyer may appear. The panel shall prepare a report and recommendation to the Committee. The report of the panel shall contain sufficient findings of fact to inform interested parties and a reviewing court of the basis of its decision. The claimant or the lawyer shall be entitled to present information in support of their respective claims at the time of the hearing. The rules of evidence shall not apply except to the extent required to afford fundamental fairness to all parties. (d). The decision of the panel on reconsideration shall be filed with the Committee, and notice issued to the claimant and the lawyer. The Committee may affirm, reject, or modify the panel’s decision, as it sees fit, with sufficient additional findings as may be necessary to inform interested parties and a reviewing court of the basis of its decision. The action of the Committee shall be filed with the Administrator, and notice given to the claimant and the attorney. The 27 form of the Committee’s determination of the action taken by the reconsideration panel shall be clearly labeled “final order” and shall include an explanation of rights of appeal from such final order. 31J APPEAL (a). A claimant or lawyer may appeal to the Superior Court a final order by the Client Protection Fund Committee. The appeal shall be filed with the Clerk of the Superior Court for the Judicial District of New Haven within thirty days from the issuance of notice of the final order by the Committee. A copy of the appeal shall be served in accordance with §120 on the Administrator, as agent for the Client Protection Fund Committee. (b). Within 30 days after the service of the appeal, or within such further time as may be allowed by the court, the Client Protection Fund Committee shall transmit to the reviewing court a certified copy of the entire record of the proceeding appealed from, and shall include the Committee’s record in the case, a copy of the reconsideration panel’s record in the case, which shall include a transcript of any testimony heard by it, and a copy of all orders and final orders issued. By stipulation of all parties to such appeal proceedings, the record may be shortened. The court may require or permit subsequent corrections or additions to the record. (c). The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the Client Protection Fund Committee are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument. (d). The appellant shall file a brief within thirty days after the filing of the record by the Client Protection Fund Committee. The Client Protection Fund Committee shall file its brief within thirty days of the filing of the appellant’s brief. Unless permission is given by the court for good cause shown, briefs shall not exceed thirty-five pages. (e). Upon appeal, the court shall not substitute its judgment for that of the Client Protection Fund Committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the Committee unless the court finds that substantial rights of the appellant have been prejudiced because the Committee’s findings, inferences, conclusions, or decisions are: 1. In violation of constitutional, Practice Book or statutory provisions; 2. In excess of the authority of the Committee; 3. Made upon unlawful procedure; 28 4. Affected by other error of law; 5. Clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record; or 6. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal, and, if appropriate, rescind the action of the Committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the Superior Court hereunder is a final judgment. (f). In all appeals taken under this section, costs may be taxed in favor of the Client Protection Fund Committee in the same manner, and to the same extent, that costs are allowed in judgments rendered by the Superior Court. No costs shall be taxed against the Client Protection Fund Committee. 31K PAYMENT OF CLAIM The Administrator shall pay claims out of the Client Protection Fund in accordance with an order of the Committee. During all periods in which an interested party may make a request for reconsideration, and during all appeal periods, payment shall be stayed. If reconsideration or an appeal is filed, payment shall be stayed until there is a final order of the Committee or the court. The Committee may require as a condition of payment that the claimant execute such instruments, take such action or enter into such agreements as the Committee requires, including assignments, subrogation agreements, and trust agreements. 29 1. LEADING CASES 101. A trilogy of cases from the Connecticut Supreme Court upholding the application of Public Act 93-77, the legislative overruling of McGlinchey. 101a. Uninsured and underinsured motorists: retroactive statutory overruling of McGlinchey upheld against constitutional challenges. Serrano v. Aetna Ins. Co., 233 Conn. 437 (June 13, 1995). In McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133 (1992), the Connecticut Supreme Court held that an insurer was entitled to enforce a policy provision requiring its insured to file an underinsured motorist claim within two years from the date of the accident. The Connecticut legislature responded by enacting Public Act 93-77, which prohibits any such contractual limitation of less than three years, and further tolls the limitations period to give the insured 180 days after the date of exhaustion of the liability policy to seek UM benefits. P.A. 93-77 took effect on May 20, 1993. It contains a provision making its prohibitory terms applicable to any UM claim in which no settlement or final judgment had been reached as of December 8, 1992. In Serrano, plaintiff was insured under an Aetna UM policy containing a two-year limitations provision. She was injured on May 23, 1989, and exhausted the underinsured tortfeasor’s liability policy in the fall of 1991. She brought suit against Aetna on the UM claim in January 1992. The claim was still pending when P.A. 93-77 was enacted. The issue in Serrano was whether application of P.A. 93-77 under these circumstances impaired the existing contract between plaintiff and Aetna containing a two-year limitations period, in violation of either the Contract Clause or the Due Process Clause of the federal and/or state constitutions. The Supreme Court held that P.A. 93-77 did not act as an impermissible impairment of the parties’ contractual relationship. The Court noted that the insurance business is heavily regulated and statutory restrictions on the right to contract are pervasive. The limitations provision in particular was the subject of substantial litigation, its validity was in doubt prior to McGlinchey, and legislative response to McGlinchey was “by no means unforeseeable.” The Court went on to reject Aetna’s other constitutional claims on similar grounds. 30 101b. Public Act 93-77 applies to cases pending on appeal at the time of its effective date. Stevens v. Aetna Life & Casualty Co., 233 Conn. 460 (June 13, 1995). Public Act 93-77 (“the Act”) provides that its prohibition against certain contractual limitations periods applies to any uninsured or underinsured motorist claim in which settlement had not been reached or final judgment had not been rendered as of December 8, 1992. In Stevens, the plaintiffs had filed an uninsured motorist claim more than two years after the accident giving rise to their injuries. Summary judgment was granted against plaintiff on November 6, 1992, on the ground that their claim was time-barred under the two-year limitations period contained in their policy. An appeal was taken and was pending as of December 8, 1992, the “retroactive” date contained in P.A. 93-77. After enactment of P.A. 93-77, the plaintiffs moved to open judgment before the trial court. That motion was denied on the ground that its judgment of November 6, 1992 constituted a “final judgment” within the meaning of the Act. The Supreme Court transferred the case to itself and reversed. The Court, noting that “final judgment” can mean different things for different purposes, held that the legislature intended to restore to all litigants whose rights were affected by McGlinchey the opportunity to benefit from the remedial legislation. 101c. In the absence of any enforceable contractual limitations period, the six-year statute of limitations governs UM claims. Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474 (June 13, 1995). The issue in Bayusik was what limitations period governed an insured’s right to make a UM claim where the two-year contractual period was invalid under P.A. 93-77. The Court held that the six-year limitations period generally applicable to written contracts, and not the three-year period referred to in section 3 of 93-77, governed in the absence of an enforceable contractual provision. The result was determined by reference to legislative history on this point. Thus, under 93-77, parties may contract for a three-year limitations period (but no less); but in the absence of an enforceable contractual provision, the six-year statute of limitations applies. 31 102. The Supreme Court agrees to reconsider its expansive interpretation of the recreational use statute. Conway v. Town of Wilton, 39 Conn. App. 280, cert. granted 235 Conn. 934 (1995). The Supreme Court has agreed to consider three important issues arising under the Recreational Use Statute, §52-557f et seq., which provides immunity under circumstances to “owners” of land who make their property available to the public, without charge, for recreational purposes. The first issue is whether the statutory immunity is available to municipalities. The court previously had ruled that it is. See Manning v. Barenz, 221 Conn. 256 (1992); Scrapchansky v. Plainfield, 226 Conn. 446 (1993). The second question is the extent to which the statutory immunity extends to landowners in their supervisory capacity. The third issue is what it means to charge a “fee” so as to take a landowner out of the statutory immunity. The first two issues arise from the Appellate Court’s decision in Conway v. Town of Wilton, 39 Conn. App. 280 (1995). Amy Conway was injured while participating in a state high school tennis tournament run by the Connecticut Association of Secondary Schools (“CASS”) and held on courts owned by the Town of Wilton. She sued both defendants, each of which raised the statutory immunity under §52-557f. The trial court granted summary judgment. The Appellate Court affirmed. It rejected plaintiff’s claim that CASS owed plaintiff a duty separate and distinct from any duty it may have owed plaintiff as “owner of land” within the meaning of §52-557f. The Supreme Court granted certification and agreed to consider the “independent duty” argument raised against CASS, and to reconsider whether the statute should apply to municipalities at all. The Supreme Court has also ordered that another case involving the recreational use statute, Luce v. City of West Haven, (SC 15144) be reassigned for argument with Conway. Luce involves a plaintiff injured in a softball game held on West Haven’s municipal field. Plaintiff was playing in a league that paid $295.00 per team to the City as a fee. The question is whether that payment constitutes a “charge” or “fee” so as to avoid immunity under the recreational use statute. 32 103. $7,400,000 verdict for 22-year old paraplegic upheld. Gladstone v. Grinnan, Superior Court, J.D. New Haven, No. 316424 (12/15/95) (memorandum of decision re motion to set aside verdict or for remittitur) [Full text of decision published at 14 Forum 61 (Jan/Feb 1996)] The jury awarded plaintiff, represented by CTLA past-president and long-time board member Ira Grudberg of Jacobs, Grudberg, Belt & Dow of New Haven, $1,600,000 for economic damages and $5,800,000 for noneconomic damages, totaling $7,400,000. The defendants argued that the awards were excessive. The evidence showed that the plaintiff, a 22-year old college student at the time of the accident, was thrown 50 feet, and in addition to becoming a paraplegic, suffered a fractured hip, fractured clavicle, dislocated right knee, fractured left elbow, and other physical injuries. She also suffered severe psychological injuries that affected her self-esteem. The court, Martin, J., noted that the “loss of feeling in her lower body makes even the most simple of life’s functions difficult.” Given the evidence on the nature and extent of the plaintiff’s injuries, the court held that the jury’s award of noneconomic damages did not shock the sense of justice, and it refused to set aside the verdict as excessive. 103a. Offer of judgment adds prejudgment interest of $3,953,886 to $7.4 million verdict, bringing total judgment to $11,199,056. Gladstone v. Grinnan, Superior Court, J.D. New Haven, No. 316424 (12/15/95) (memorandum of decision re award of prejudgment interest) [Full text of decision published at 14 Forum 65 (Jan/Feb 1996)] In a separate memorandum of decision, Judge Martin held plaintiff’s offer of judgment not conditional, and awarded prejudgment interest. Plaintiff’s offer of judgment reads as follows: The plaintiff in the above captioned action, pursuant to sections 345 et seq., Connecticut Practice Book, hereby offers to settle the claim underlying this action in return for a payment of FIFTY THOUSAND ($50,000.00) Dollars. Specifically, plaintiff offers to stipulate that damages resulting from defendants’ negligence are in the amount of FIVE MILLION ($5,000,000.00) Dollars. Plaintiff further offers to stipulate that the sum of $155,179.17, representing collateral medical benefits paid by CHCP, should be deducted from such damages, and that judgment should enter in the amount of $4,844,020.83. Plaintiff further offers to provide to defendants a full Satisfaction of Judgment in return for a payment of only $50,000.00. 33 Plaintiff further offers as part of said judgment, to stipulate that, if any judgment is entered against either of defendants in the case of Sara Gladstone vs. Southern New England Telephone vs. Gloria Grinnan Civil No. 391CV00306(WWE), United States District Court, District of Connecticut, plaintiff will not attempt to or satisfy that judgment against defendants herein. Defendants objected to the imposition of any prejudgment interest on the grounds that the above offer of judgment was invalid because it contained a condition. The defendants argued that the offer to settle the case for $50,000 was conditioned upon a stipulation between the parties that damages were $5,000,000, less collateral sources. At the time of the offer, an action by the plaintiff was pending in federal court against SNET Co. SNET had filed a third party complaint against the defendants in the present case. The defendants also argued that the offer of judgment statute and the rules authorizing the offer of judgment are unconstitutional because there is a disparity in the way plaintiffs and defendants are treated and that the statutes and rules are violative of their right to a jury trial. The court made short work of the defendants’ constitutional arguments, and held that the offer of judgment was not conditional. Noting that courts disfavor conditional offers of judgment because they thwart the purpose of the offer of judgment statute, the plaintiff’s offer in this case was not indefinite or conditional. The terms of the offer had a definite and precise meaning, and was in a form that would allow the defendants the opportunity to assess the risk attendant to rejection or acceptance of the offer. 104. Rear-end collision does not automatically entitle the plaintiff to an instruction on §14-240. Wrinn v. State of Connecticut, 234 Conn. 401 (1995) Plaintiff brought this action to recover damages when his car, which was stopped at a traffic signal, was struck from behind by defendant. Plaintiff alleged that the defendant violated §14-240, the “following too closely” statute. Defendant claimed that the first time she saw the plaintiff, plaintiff was already stopped at the light ahead of her. The trial court refused to instruct the jury that defendant had violated §14-240. The jury returned a verdict for the defendant. Plaintiff appealed. The Appellate Court affirmed the judgment of the trial court. The plaintiff, on the granting of certification, appealed to the Supreme Court. Judgment of the Appellate Court, affirmed as plaintiff failed to present any evidence that defendant “followed” his car too closely. 34 The court reasoned that the term “follow” in §14-240 implies the “movement of two vehicles.” There was no evidence that the defendant ever saw the plaintiff’s car in motion. The Supreme Court affirmed the conclusion of the Appellate Court that “`§14-240 is applicable to situations in which one motor vehicle is traveling behind another, in the same lane of traffic and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicle and that failure had a causal connection to a resulting collision.’“ 105. Wrinn Applied - Factfinder cannot infer negligence from the mere fact of a rear end collision. Horn v. Maryland Casualty Co., 234 Conn. 408 (1995). 106. Arbitration award enforceable even after time to confirm award under §52-417 has passed. Spearhead Construction Corp. v. Bianco, 39 Conn. App. 122, cert. denied 235 Conn. 928 (1995). This dispute over a building contract was submitted for arbitration and an award was issued on June 14, 1988. Neither party sought either to confirm or vacate the award within the one-year period permitted by §52-417. Plaintiff brought suit in 1990 seeking to enforce the award Various issues were raised on appeal, the most noteworthy of which is the fundamental issue of whether the award was unenforceable because the action to enforce it was not brought within the one-year statutory limit. The Appellate Court held that the enforcement action could be brought under the general six-year limitations period applicable to written contracts generally, because the contract contained an arbitration clause promising that the parties would be bound by the arbitrator’s decision. Judge Freedman writes a concise concurring opinion summarizing the narrow circumstances under which an arbitration award may be avoided. 107. New Hampshire Supreme Court denies auto manufacturers immunity from “no air bag” cases. Tebbetts v. Ford Motor Co., 665 A.2d 345 (N.H. 1995), cert. denied 116 S.Ct. 773 (1/16/96). Rebecca Tebbetts was killed in an auto crash in May 1991. Her Ford Escort was not equipped with an air bag. If her vehicle had been equipped with an air bag, she probably would be alive today. 35 Following Rebecca’s death, her mother filed suit against Ford Motor Co., charging that the car was defectively designed because it did not have an air bag. Ford succeeded in having the case dismissed on federal preemption grounds at the trial court level. In a unanimous decision announced September 19, 1995, the New Hampshire Supreme Court reversed and held that auto crash victims can sue car manufacturers for the delay in installing air bags. The decision in Tebbetts is the first in the Nation on this issue by a state’s highest court. The New Hampshire trial court had ruled that Ford could not be sued even if it had acted outrageously in sacrificing lives for profits by refusing to install air bags in its cars for years. The trial court noted that the federal government had permitted Ford to sell cars without air bags and as a result Ford was immune from suit under the state common law. It held that the National Traffic and Motor Vehicle Safety Act of 1966 impliedly preempted Tebbetts’ common law claim. The New Hampshire Supreme Court held that Congress had made it crystal clear that common law claims are not affected by the Safety Act. It relied heavily on the Motor Vehicle Safety Acts savings clause, which reads: Compliance with any Federal motor vehicle safety standard ... does not exempt any person from any liability under common law. The court held that an examination of the congressional debate leading up to the passage of the 1966 statute also showed that lawmakers do not intend to bar state tort claims. Since the Tebbetts decision was issued, no appellate court has accepted the auto makers’ preemption argument. The first to reject it was the Ohio Court of Appeals, the state’s intermediate court, in Nelson v. Ford Motor Company, 1995 WL 854515 (Ohio App. 11 Dist.)(12/15/95). In a ten-page opinion issued on December 15, the court emphasized that Congress had explicitly preserved all common law claims in the National Traffic and Motor Vehicle Safety Act of 1966 by providing, “Compliance with any federal motor vehicle safety standard ... does not exempt any person from any liability under common law.” Like the Tebbetts court, it held that these words contradicted Ford’s assertion that Congress expressly preempted “no-airbag” claims and precluded any court from finding that Congress impliedly preempted such claims because they conflict with federal law. On December 28, the Indiana Supreme Court went one step further in Wilson v. General Motors Corporation, 660 N.E.2d 327 (Ind. 1995). In a scholarly 27-page decision, it held that, even if a court could consider the implied preemption argument, that would make no difference because “no airbag” claims do not conflict with federal law. It noted that, under the U.S. Supreme Court rulings, implied preemption exists when “it is impossible for a private party to comply with both federal and state requirements” or when state law “stands as an obstacle to the accomplishment and execution of 36 the full purposes and objectives of Congress.” The Indiana high court found, however, that neither test was met in Wilson. On January 16, 1996 the U.S. Supreme Court denied certiorari. 108. $3.5 million verdict for 5-year old child upheld. Spruill v. Downing, 1995 WL 542121 (Superior Court, J.D. Middlesex, No. 68193)(9/5/95). The jury awarded $1 million in economic damages, and $2.5 million in noneconomic damages. Plaintiff, represented by CTLA past-president and long-time board member Bill Davis of RisCassi & Davis of Hartford, offered the opinion of Gary Crakes, an economist, concerning the earning capacity of the 5-year old decedent. The amount awarded for economic damages was consistent with Mr. Crakes’ opinion. The defendants argued that the opinion advanced by Crakes was invalid because it was based only on potential earnings of the average or “mean” 5-year old child, and that such a basis is inherently speculative. The court, Aurigemma, J., rejected this argument, relying on Mather v. Griffin Hospital, 207 Conn. 125 (1988) where the court held that it was not unreasonable for a jury to adopt the present value figure of $1,772,000 for the lost earning capacity of an infant. The court in Mather recognized “that economics is an inexact science,” and stated that it “hesitated to adopt any particular method for computing the present value of lost compensation and future costs.” 207 Conn. at 147. As to the award of $2.5 million noneconomic damages, Judge Aurigemma stated: Life’s enjoyment defies quantification. It is truly priceless. Thus, it is extremely difficult for any court to set aside or remit a wrongful death, noneconomic damages verdict. 109. Lead paint exposure does not create strict liability. Appellate Court decision reversed, but case remanded to Appellate Court for consideration of plaintiff’s remaining claims. Gore v. People’s Savings Bank, 235 Conn. 360 (1995). The plaintiffs sought to recover for injuries sustained by their minor son as a result of his exposure to lead-based paint in an apartment owned by defendants. The plaintiffs claimed in part that the defendants were strictly liable pursuant to §§47a-7 and 47a-54f(b). These statutes mandate that landlords maintain rental premises in safe 37 and habitable condition. The Appellate Court held that §47a-8, specifically providing that the presence of lead-based paint renders a dwelling unit unfit for human habitation, creates strict liability. The trial court had granted the defendants’ motion for a directed verdict on the strict liability count, and the jury returned a defendants’ verdict. The Appellate Court reversed on that ground. The Supreme Court granted certification. The defendants claimed in the Supreme Court that the subsequent repeal of §47a-8 clarified the legislative intent that the statute was not intended to create strict liability. Although the court rejected the defendants’ argument that the repeal of §47a-8 clarified the legislative intent, it reversed the Appellate Court on the ground that strict liability was not created by the statutes in question. The court reasoned that the Appellate Court misconstrued the relationship between common law premises liability and the doctrine of negligence per se in concluding that the legislature intended to create strict liability and did not intend to permit excuses or justifications for violations of the statutes. As a matter of common law, the Supreme Court reasoned, a tenant’s cause of action against a landlord is predicated on the landlord’s control of the premises and actual or constructive notice of the conditions. Rather than eliminating the notice requirement in cases involving lead-based paint, the statutory scheme at issue was held to evince a legislative intent to afford landlords the opportunity to remedy violations after receipt of notice. Accordingly, no strict liability could be imposed. The Appellate Court decision on remand is reported at 40 Conn. App. 219 (1996). 110. The doctrine of parental immunity bars an unemancipated minor’s action against his father under the dog bite statute. Squeglia v. Squeglia, 234 Conn. 259 (1995). In this case of first impression, plaintiff, an unemancipated minor, brought an action in strict liability to recover damages for injuries sustained when he was bitten at home by a dog owned by his father. The defendant filed a motion for summary judgment claiming that the doctrine of parental immunity bars the action. The trial court determined that the reasoning behind the doctrine of parental immunity which bars an unemancipated minor from bringing an action in tort against his or her parent, applies equally to actions in negligence as it does to actions in strict liability pursuant to §22-357. The Court granted defendant’s Motion for Summary Judgment on the basis that there was no genuine issue of material fact regarding the ownership of the dog or the parentage of the plaintiff. Plaintiff appealed. The Appellate Court affirmed the trial court. The Supreme Court granted certification and affirmed the Appellate Court’s decision. 38 Justice Berdon dissented focusing on the fact that §22-357 requires that if a dog bites a person, the dog’s owner is liable to that person. According to Justice Berdon, the parent in this case should be held to the same standard of liability as every other dog owner. A four year old plaintiff should not be deprived from obtaining compensation for permanent facial scars suffered as a result of being attacked by his father’s dog. Further, the existence of insurance in this case outweighs against the shield of parental immunity. 111. Appellate Court creates procedure for determining whether Batson hearing had been waived because it was untimely. Supreme Court reverses and sets a bright line rule. State v. Robinson, 38 Conn. App. 598, 604-619, reversed, 237 Conn. 238 (6/4/96). This case involves two peremptory challenges of the state. The defendant is black. Of the first 38 venirepersons called for jury selection three were black. One was excused for hardship reasons and the other two, Spruill and Perry, were excused by the state through peremptory challenges. Spruill was the second person voir dired and Perry, the 38th person voir dired. Defendant did not make a Batson objection immediately after Spruill was excused by the state. Immediately after the state excused Perry, defendant made a Batson objection as to both Spruill and Perry. The defendant also moved that the entire venire panel be dismissed. The Appellate Court upheld the decision of the trial court that the peremptory challenge as to Perry was not racially motivated. At trial the state had declined to put anything on the record as to Spruill on the basis that defendant had not made a Batson claim as to her immediately following her voir dire. The court did not require the state to put on the record its reasons for excusing Spruill. Although the court never specifically ruled on defendant’s motion to dismiss the entire venire panel the court implicitly denied this motion because it upheld the peremptory challenge as to Perry and found that no Batson hearing was needed for the peremptory challenge of Spruill because defendant’s claim as to her was untimely. After the trial, the court also denied defendant’s motion for a new trial based on the Batson claims. Whether the defendant’s request for a Batson hearing as to Spruill was timely when not made immediately following the voir 39 dire of her involves a question of first impression. The Appellate Court discussed competing considerations such as a defendant’s lack of empirical data in some instances until a comparison of voir dires can be made by defendant and the difficulty for the state to reconstruct honest race neutral reasons if the challenge occurs long after the excusal. The Appellate Court concluded that the defendant should have requested a Batson hearing when the possibility of purposeful discrimination became or should have become apparent. The point when this occurred is a question of fact for the trial court to determine. The Appellate Court exercised its supervisory powers and established the following procedure for future cases: A defendant should preserve his right to a hearing by alerting the trial court and the state when a member of the cognizable group has been peremptorily challenged that a later request for a Batson hearing may be made. If a defendant, however, should have known of the possible prejudice on the basis of the voir dire of a venireperson who is struck, that defendant must assert a claim to a Batson hearing immediately following that voir dire or will be deemed to have waived it. If, however, a defendant could not have known of any possible prejudice on the basis of the voir dire, the right to a subsequent Batson hearing will not be waived if that defendant had alerted the court to the possibility immediately following the voir dire. 38 Conn. App. at 617. The remedy for the failure to grant a Batson hearing in this case is a remand rather than a summary grant of a new trial. The case was remanded for further proceedings to determine whether the defendant waived his right to a Batson hearing as to Spruill. If such right was not waived the court was to hold a Batson hearing. The Supreme Court granted certification on the following issue (235 Conn. 917): Whether, under the state or federal constitution, a Batson objection must be made immediately following the voir dire of the challenged venireperson lest it be waived? On June 4, 1996, the Supreme Court reversed the Appellate Court, holding that an equal protection objection to the use of a peremptory challenge is timely if it is brought to the attention of the trial court at any time before the jury is sworn. Here, because the defendant objected to the state’s peremptory challenge before the jury was sworn, the objection was timely. Because five years had elapsed 40 since the voir dire, and because the state had not placed on the record its reasons for striking the prospective juror, the case was remanded for a new trial rather than a hearing on the constitutional challenge. 112. Defendant’s common law right to bodily integrity trumps hospital’s interest in protecting its patients. Stamford Hospital v. Vega, 236 Conn. 646 (1996). Stamford Hospital sought an injunction to authorize the administration of a blood transfusion to the defendant, who was a patient and who had refused to give consent to the transfusion. The defendant, a Jehovah’s Witness, gave birth to a child and bled heavily following the delivery of the baby. The baby was healthy. In the opinion of the plaintiff’s attending physician and other hospital physicians, it was essential that the defendant receive blood transfusions in order to survive. The trial court, relying on the state’s interest in preserving life and in protecting innocent third parties, such as the baby, who the hospital claimed would have been abandoned had the defendant died and noting that the defendant’s life could be saved by a blood transfusion, granted the injunction. Thereafter the defendant was given transfusions, recovered and was discharged from the hospital. She then appealed the grant of the injunction to the Appellate Court, which dismissed the appeal as moot. After determining that the appeal was not moot, the court held that the issuance of an injunction authorizing the hospital to administer a blood transfusion to the defendant violated her common law right of bodily self-determination. The hospital’s interest in protecting its patients did not extend to the defendant’s baby, whose health was not in danger, and as compelling as the hospital’s interest in preserving life and upholding the ethical integrity of the medical profession might be, those interests were not sufficient to take priority over the defendant’s common law right to bodily integrity. 236 Conn. at 664-665. 113. Professional organization has no duty to an unknown third party for negligence in promulgating professional standards relied upon and followed by the professional. Waters v. Autuori, 236 Conn. 820 (1996). The dispositive issue, according to the Chief Justice, in this appeal was whether the promulgation of professional accounting standards was sufficient, by itself, to impose upon the promulgating professional organization a duty of care to an unknown third party who relies on 41 the opinion of a certified public accountant claiming to have followed those standards. The plaintiff claimed that the duty did exist based on her claim that it was foreseeable that persons relying on reports required to be prepared pursuant to the American Institute of Certified Public Accountant’s (AICPA) standards would be injured if the AICPA negligently promulgated such standards. The Supreme Court took issue with the plaintiff’s “predicating the existence of a duty of care on principles of foreseeability.” 236 Conn. at 827. The court held that the plaintiff misconstrued the concept of duty as defined in our case law. Foreseeability is a necessary component of duty so that the absence of foreseeability forecloses the existence of a duty. The converse, however, is not true: that a particular injury to a particular plaintiff or class of plaintiffs is foreseeable does not in itself create a duty of care. 42 The court, quoting from its decision in RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 386 (1994) stated (236 Conn. at 828): While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. ... Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care. (quotation marks omitted). 43 2. STATUTES AND RULES 201. Proposed Superior Court Rules. The May 7, 1996 Law Journal (pp. 1E to 65E) contains proposed Practice Book revisions to be considered by the Rules Committee. A public hearing was held May 20, 1996. A summary of the rules directly affecting the CTLA practitioner follows. 1. Advertising: A new provision has been added to §7.2 requiring any advertisement or communication to “include the name of at least one lawyer responsible for its content.” The comment states that such identification “will facilitate enforcement of compliance with other advertising requirements.” 2. Suspension of lawyers who violate child support orders: A new §30A adopts the provisions of §95-310 as it is applicable to lawyers. The comment to the proposed rule reflects that on March 18, 1996 the judges adopted the rule on an interim basis pursuant to §7(c). The interim rule became effective on April 2, 1996. Public Act 95-310 provides for the suspension of professional, occupational, or motor vehicle licenses of individuals who are delinquent in child support orders. The comment continues, “[b]ecause the regulation of attorneys is within the authority of the judges of the Superior Court, this legislation does not provide for the suspension from the practice of law of members of the bar in this state who are delinquent child support obligors. This rule applies the provisions of P.A. 95-310, to the extent appropriate, to the suspension of attorneys.” The rule sets out the procedure for suspension and reinstatement upon proof of compliance by the attorney. 3. Pleading insurance policy limitations: A new §195B provides that an insurer should raise issues of monetary policy limits, or credits for payments by or on behalf of third-party tortfeasors, by special defense. The rule specifically provides that when a jury determination of the facts raised by the special defense is not necessary, the special defense shall not be submitted to the jury, but shall be resolved by the trial court prior to the rendering of judgment. The proposed rule is based on Bennett v. Automobile Insurance Company of Hartford, 230 Conn. 795 (1994) in which the Supreme Court held that an 44 insurer should raise policy limitation issues, even when undisputed, by special defense. Section 195A prohibits the pleading of collateral source payments. 45 4. Motions which delay the commencement of the appeal: A revised §204A provides that any motion which under §4009 would delay the commencement of the appeal period until “all such motions have been decided,” and any motion which, pursuant to §4009, would toll the appeal period and cause it to begin after such motions have been decided, “shall be filed simultaneously insofar as such filing is possible, and shall be considered by the judge who rendered the underlying judgment or decision.” The rule provides that the party filing the motion must set forth the judgment or decision which is the subject of the motion, the name of the judge who rendered it, and the specific grounds upon which the party relies. The motion must indicate at the bottom of the first page that it is a 204A motion. The last sentence of the rule states that it applies to “motions to reargue decisions that are final judgments for purposes of appeal ....” The comment to the rule says that the rule has been drafted to conform trial practice to the provisions of §4009, which provides that if a motion that might render the judgment ineffective is filed within the appeal period, the appeal period is tolled and a new appeal period commences when the motion is ruled on. The comment also states that the reference to simultaneous filing is to prevent parties from filing one motion after another and thereby delaying the appeal. It is not clear from the way the rule is drafted that this has been accomplished. For example, the rule would not seem to prohibit the filing of a motion to reargue a decision on a motion to set aside. The rule provides that tolling motions “shall be filed insofar as such filing is possible.” Since a motion to reargue the decision on a motion to set aside cannot be filed at the time the motion to set aside is filed because the decision has not been rendered, it would seem that the rule does not prohibit the practice complained of. In addition, there is a flaw in the rule as far as practitioners are concerned. Motions under §4009 which delay the commencement of the appeal period delay it from the issuance of notice of the decision upon the motion. The proposed rule garbles this by using the phrase “until all such motions have been decided ....” Since it is §4009 that is the operative rule in creating the tolling effect, this ought not to be a problem, but probably will be in those circumstances where the motion is decided but notice does not issue for several days. This is especially true at the present time with the shortage of personnel in the clerks’ offices. The problem is easily solved by deleting the 46 phrase “have been decided” and substitute “issuance of notice of the decision.” 5. Petitions under §52-190a(b): Petitions to extend the statute of limitation in malpractice cases under §52-190a(b) has been added to §250, mandating that the clerk keep a record of all pending cases, including the date of filing, making, or rendition of the application or petition. At present the clerks keep copies of these petitions, but the practice varies as to how long they are kept, and whether they are kept with the file. 6. Assignments for trial: Several rules have been amended to reflect the new system of assignment for trial. The reference to trial lists have been deleted from the rules. Because the meaningful event is no longer the trial list claim, but the scheduling of cases in which the pleadings are closed for pretrial, at which a trial date is selected, §258 now requires a certificate that the pleadings are closed instead of a trial list claim. After there is a certification (on a form to be supplied by the clerk) that the pleadings are closed, the clerk is required to refer the case to the presiding judge to schedule a trial as soon as the court docket permits. §263 provides that cases in which the pleadings are closed may be assigned for pretrial, and if the case is not disposed of at pretrial, §264 authorizes various orders, including a continuance for ADR, the entry of orders to assure that the case is ready for trial, or a trial date certain or week certain in the future, or the assignment of a case to a specific judge for trial on a date certain. The last sentence of §264 reads: “the date designed for trial shall, if possible, be agreeable to the parties.” §270 provides that cases not reached for trial on the date certain or during the week certain to which they were assigned “shall be assigned with priority to a new date, which shall, if possible, be agreeable to the parties.” The presiding judge has the discretion to assign a case for trial that has not been pretried. If the case is not reached when it is assigned for trial, §274 provides for rescheduling which “shall not displace cases already assigned for trial.” §274A provides that if a case is reported settled it must be withdrawn within 30 days or shall be dismissed, unless the court for good cause extends the time for withdrawal. The comment to §274A states: The better practice when settlements are announced on the trial date is to have the parties put the terms of the settlement on the record. Pursuant to Audubon 47 Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (1993), if a party thereafter fails to comply with the terms of the settlement, the other party is entitled to judgment in accordance with the settlement contract placed on the record, without trial. This comment takes a very expansive view of the Audubon case. The setting of Audubon was that a settlement agreement was reported after three days of voir dire. The cases upon which Audubon is based were federal cases in which a settlement agreement had been converted to a judgment after court time had been utilized in the trial of the case. If a case is tried for three weeks, and then reported settled, there is good reason to enforce the settlement and, if necessary, convert the agreement into a judgment. This practice has been used sparingly in federal court in those circumstances where court time was not utilized, however our judges seem to interpret Audubon as meaning that any settlement reported to the court can be converted into a judgment if not performed. 7. Motion in limine: §284A adopts a rule for the motion in limine. It provides that the judge to whom the case has been assigned for trial may entertain a motion in limine made by any party “regarding the admission or exclusion of anticipated evidence.” The rule also provides that if the case has not been assigned for trial the court for good cause may entertain such a motion. The motion must be in writing, describe the anticipated evidence, and the prejudice which may result from it. It is unfortunate that the rule has been adopted covering only the admission or exclusion of anticipated evidence. The phrase “regarding the admission or exclusion of anticipated evidence” should be changed to “regarding a ruling which may arise on the trial.” As the rule is now drafted it does not cover rulings on the voir dire, opening statement, or in final argument. Although frequently rulings concerning what can be said in voir dire or opening statement are dependent on the admission or exclusion of evidence, this is not always the case, as, for example, those circumstances where counsel may wish to use a visual aid, such as a chart showing a timeline, in opening statement. There are many other scenarios which can be hypothesized that are not directly dependent on the admission or exclusion of evidence, and the choice of this language is unfortunate because it would appear open to interpretation that the use of the motion is limited to the admission or exclusion of anticipated evidence. 48 8. Materials to be submitted to the jury: A new §309B has been adopted requiring the court to submit to the jury all exhibits received in evidence. The rule then provides for the trial court’s discretion to submit to the jury: 1. The complaint, counterclaim and cross complaint, and responsive pleadings; 2. A copy or tape recording of the instructions to the jury; 3. Upon request by the jury, a copy or tape recording of an appropriate portion of the instructions to the jury. With the exception of the provision regarding pleadings, this new rule is similar to §858 of the criminal rules. 9. Interrogatories to be proposed to the jury: §312 has been amended to require that interrogatories submitted to the jury for the purpose of explaining or limiting a general verdict be written. §317 now requires requests for jury interrogatories to be filed as requests to charge are filed. 10. Arguing money: §313, which previously merely prohibited disclosing the amount demanded in the complaint to the jury, now provides that counsel for any party to the action may “articulate to the jury during closing argument a lump sum or mathematical formula as to damages claimed recoverable. The court shall issue cautionary instructions pursuant to General Statutes §52-216b.” 11. Requests to charge on specific claims: The reference to last clear chance and assumption of the risk have been deleted from §316 of the Practice Book. The comment states that the deletion is proposed to reflect the abolition of the doctrine of last clear chance and assumption of the risk contained in §52- 572h(l). This statute applies only to negligence actions. Accordingly, the doctrine of assumption of the risk continues to be a viable defense in certain intentional tort actions. It would appear the deletion of assumption of the risk from this rule is inappropriate. The doctrine of last clear chance is a doctrine of negligence and the deletion of that doctrine from the rule is appropriate. 49 12. Requests to charge: §317 has deleted the requirement that written requests to charge be filed in triplicate. The rule now provides that the requests are to be filed at the beginning of the argument, or at such earlier time as the court directs and “shall be hand delivered immediately to the court and to opposing counsel.” It is no longer the responsibility of the clerk to distribute the requests. 13. §320 motions: §320 is the provision that authorizes motions to set aside. The rule has also always applied to motions in arrest of judgment, and motions for new trial. It now applies to the following motions: Motion to set aside verdict Motion in arrest of judgment Motion for remittitur Motion for additur Motion for new trial Motions pursuant to §52-225a for reduction of the verdict due to collateral source payments The motion concerning collateral source payments, for remittitur and for additur are new. The time frame has been expanded from five days to ten days after the verdict has been accepted. The reference in the rule that the various motions could be filed from the “judgment rendered” has been deleted. The comment states that the proposal reflects three changes: 1. The time for filing the motion starts to run upon the acceptance of the verdict and not upon the rendition of judgment. There is an extensive explanation as to why the reference to judgment has been deleted. The discussion is incomplete, however, as it does not take into consideration current practice of deferring the determination of punitive damages in CUTPA and product liability cases. In both these circumstances, the statutes authorizing punitive damages appears to authorize the same to be set by the court based on interrogatories determined by the jury. A motion attacking the amount of punitive damages must of necessity be filed after the determination of same. The deletion of the reference to the rendition of judgment is problematical in this limited area. The rule probably should have been adjusted to include this possibility. 50 2. The comment also explains the reason for adding the motion under §52-225a for the reduction of a verdict due to collateral source payments. The provision is based on Jones v. Parzych, 37 Conn. App. 784, 787 (1995) and Smith v. Otis Elevator Co., 33 Conn. App. 99 (1933). It is an excellent solution to the current problem. Both Jones and Smith involve interpretation of the statutory provision that judgment cannot be rendered until collateral source issues are resolved. Appeals in those cases where motions to set aside have been decided but collateral source issues have not are precipitous. Mandating that the collateral source motion be filed within ten days appears to solve this problem. Another problem not addressed by the rule is the motions for amended judgment under §52-225d(d) providing for the entry of a supplemental judgment in those cases where the verdict exceeds $200,000. See 14 Forum 146 (March/April 1996) for a discussion of this problem. 3. The court has added motions for “additur” and “remittitur.” This appears to be completely unnecessary, as the motion to set aside has always been used to claim that the verdict is inadequate, or excessive. The statutes applicable to additur and remittitur, §52-228b and §52-216a, have mandated that if the motion is granted because the verdict is excessive, the court is obliged to offer the prevailing party the first opportunity to remit. Similarly, if the verdict is excessive, the court is obliged to offer the parties under §52-228b, or the losing party under §52-216a, the first opportunity to consent to the additur. The relevant portion of §52-228b reads: No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to 51 accept an addition to the verdict of such amount as the court deems reasonable. Section 52-216a reads in relevant part: If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. In both scenarios, if consent is not obtained the verdict is set aside. The formalization of a motion for additur and a motion for remittitur would appear to be redundant, as both are covered by the timely filing of a motion to set aside claiming that the verdict is inadequate or excessive. The problem now will be that if a timely motion to set aside is filed claiming the verdict is excessive or inadequate, but a motion for additur or remittitur is not filed, will the issue be appropriately raised to preserve for appeal? Conversely, if a motion for additur or remittitur is filed in place of a motion to set aside, will this be construed as sufficient under Pietrorazio v. Santopietro, 185 Conn. 510 (1981). The new appellate rules to take effect September 3, 1996 (published in the May 21, 1996 Law Journal) specifically refer to motions for remittitur and motion for additur in the new §4009(b). These rules provide that if a motion for additur or remittitur is filed within the appeal period, including any extension of the appeal period, a new appeal period shall commence upon the earlier of the acceptance of the additur or remittitur or the expiration of the time set for such acceptance. If the motion is denied, a new appeal period commences upon the denial of the motion in open court, or the date of mailing. Because the appellate rules specifically adopt these unnecessary and redundant motions, it would appear 52 that the motion for additur or remittitur should be utilized. Until Pietrorazio v. Santopietro is overruled, however, the better practice from the practitioner’s standpoint would be to file both a motion to set aside on the grounds of inadequacy or excessiveness, and a motion for additur or remittitur, whichever is applicable. 14. 320A motions to reduce verdict: This provision reads as follows: Motions to reduce the amount of a verdict or award pursuant to Gen. Stat. §§52-225a or 52-216 shall be filed within five days of the rendering of the verdict or award and shall be heard by the judge who conducted the trial. This section should be dropped. It conflicts with the revised §320, and makes inappropriate reference to §52-216, which has to do with the jury deciding questions of fact and the court deciding questions of law. The reference should have been to §52-216a. 15. The time of entry of judgment: §324 has been revised to provide that if no motions under §§320 or 321 are filed, upon the expiration of the time provided for the filing of such motions, judgment on the verdict shall be rendered in accordance with the verdict, and the date of judgment shall be the date the verdict was accepted. If motions are filed pursuant to §§320 or 321, the rule now provides that “judgment shall be rendered at the time of and in accordance with the decision on such motions.” The rule further provides that whenever a judgment is rendered in a civil jury case, the clerk shall send notice of such judgment to all attorneys and pro se parties of record. The comment states that the change is “suggested to codify the current practice.” The comment correctly cites Clime v. Gregor, 145 Conn. 74, 76 (1958) that if no motion under §§320 or 321 is filed judgment enters at the time the verdict is accepted in open court. The comment relies on dicta in Gordon v. Feldman, 164 Conn. 554, 557 (1973) that motions pursuant to §§320 or 321, if filed, delay the entry of judgment until the last such motion is denied. 53 The language relied upon from Gordon v. Feldman is clearly dicta. In addition, the decision does not exactly say what the comment says it says. §4009 and its predecessors have provided that judgment enters in a civil jury case when the verdict is accepted in open court. The later filing and denial of a motion to set aside under §320 or a motion for judgment notwithstanding the verdict under §321 was always considered to relate back to the date the verdict was accepted in open court because of the language contained in §4009 and its predecessors. The new §4009 to take effect September 3, 1996 deletes the provision that the judgment in a civil jury action is deemed to enter when the verdict is accepted in open court. However, the practice in the past, because of the language which had existed in §4009, was exactly this: that judgment related back to the time the verdict was accepted. This is especially important in assessing interest under §37-3b, which allows interest at 10% per annum in negligence cases computed from the date of “judgment.” The specific holding in Gordon v. Feldman is that the four-month requirement then imposed by §51-29, the predecessor to §51-183b, did not apply to the court in its determination on a motion to set aside. This is still good law, and the 120 day rule does not apply to the court in its decision on a motion to set aside. Since the 1981 decision in Pietrorazio v. Santopietro, supra, 185 Conn. 510, it is not uncommon for counsel to request transcripts in order to prepare and brief issues raised in the motion to set aside. The time frame often exceeds four months, and in some cases can take as long as a year before the decision on the motion to set aside is finally rendered. By misinterpreting prior practice and case law, interest would not be calculated during the period of time that the court is considering the motion to set aside. This is wrong. The decision denying the motion to set aside or the motion for judgment notwithstanding the verdict, although made frequently several months after the acceptance of the verdict in open court, should relate back to the date of acceptance of the verdict in open court as the date of the entry of judgment. 16. Setting aside or opening judgments: The provisions of §§326 and 377 have been garbled. §377 applies to the opening of a judgment upon default, or judgment of nonsuit. The new rule provides that a judgment rendered or decree passed upon default or nonsuit may be set aside within four months succeeding the date on which “notice was sent.” §377 now has a second paragraph which reads as follows: 54 Any motion to open or set aside a dismissal pursuant to §251 shall be deemed to be granted from the date of filing without placement on the short calendar unless within 14 days an objection is filed. The objection shall be placed on the short calendar. This is a sensible change, however, it has been placed in the wrong rule. §377 only applies to judgments upon default or nonsuits. The above-quoted paragraph should have been added to §326, which provides for the setting aside or opening of any civil judgment or decree. It is noteworthy that §326 provides that the judgment be reopened or set aside if the motion is filed within four months of “the entry of judgment.” It is unfortunate that this rule was not amended to include the phrase “notice is sent” instead of “entry of judgment.” It is clear that the time is triggered from the issuance of notice. Morelli v. Manpower, Inc., 34 Conn. App. 419, 423-424 (1994). 17. Notices issued by counsel of nonsuit and default judgments for failure to appear: §354 has been amended to require counsel to give notice to the non-appearing party “within ten days of the entry of judgment.” The rule previously had provided that notice was to be given “forthwith.” The comment states that the word “forthwith” is ambiguous. The problem now encountered is what happens if the notice is not given within ten days of the entry of judgment. Is a late notice sufficient? Or does counsel now have to get a new judgment? It would appear that the ambiguous phrase “forthwith” should have been left alone. 18. Notice in declaratory judgment actions: §390 has been amended to provide that until all persons having an interest in the subject matter of the complaint are parties to the action, the court will not render a declaratory judgment. The word “until” was substituted for “unless.” Old authority had indicated that unless notice was given to everyone who had an interest there was a subject matter jurisdictional defect. This was changed in Dawson v. Farr, 227 Conn. 780 (1993), which held that failure to provide notice doesn’t defeat jurisdiction, but is a basis to stay the action until compliance is achieved. 19. Family cases: The proposal is that rules concerning dissolution, legal separation, and certain other family cases be moved from Chapter 17 to a separate section of the Practice Book, beginning with section no. 1200. 55 The proposed rules effect a major change in the way family law is practiced. The new rules explicitly provide for an action for custody of a minor child and visitation of a minor child, recognizing the increase of out-of-wedlock births. The rules acknowledge this fact and are designed to provide services for unmarried families and the children of those unions. §1204 represents a major change in practice. The rule now provides for automatic orders upon the service of a complaint. §1204(b) requires that the full text of the automatic orders must be set forth immediately following the plaintiff’s prayer for relief in any complaint for dissolution, separation or annulment. The automatic orders are worth reviewing. Neither party, by reason of the pendency of a case, may now sell, transfer, encumber, conceal, assign or in any way dispose of assets, individually or jointly held, without the consent of the other party in writing or an order of the court. Similarly, neither party can impose any restraint on, threaten, assault, molest, sexually assault, or attack the other party or any child of the parties. Neither party may incur unreasonable debts, remove the children permanently from the state, alter medical or dental insurance coverage, change residence without notice to the other. Many other changes are wrought by this rule, and failure to obey the automatic order may be punishable by contempt. Relief can be sought from the automatic orders by modification during the pendency of the divorce. The comment to the rule states that the automatic orders are presently used in a number of states, and are proposed to assist families in transition and maintaining, to the greatest extent possible, the status quo at the commencement of an action for dissolution without the need for court appearance on several issues. No attempt is here made to review all of the family rules. Needless to say the practitioner in family matters must study them very carefully. 202. Proposed changes in the Federal Rules of Civil Procedure. 1. Voir dire proposal: The Judicial Conference’s Advisory Committee on Civil and Criminal Rules voted not to proceed with the preliminary draft of the proposed amendments to Civil Rule 56 47 and Criminal Rule 24, both of which would have entitled attorneys to examine prospective jurors orally. The Secretary of the Committee forwarded a letter to CTLA President Robert Sheldon dated May 24, 1996, in response to Attorney Sheldon’s letters setting out CTLA’s position. 2. Twelve-person jury proposal: The Committee recommended that the proposed amendments to Civil Rule 48, which would require a judge to seat a jury of 12 in all civil actions, be forwarded to the Standing Rules Committee for submission to the Judicial Conference. The May 24, 1996 letter appears in the appendix, p. A3, as does President Robert Sheldon’s letters to the Committee, sent February 26, 1996, published at 14 Forum 109 (March/April 1996) (p. A1). 3. Court secrecy: The proposed federal rule changes to increase court secrecy have been abandoned. The Committee voted not to pursue proposed changes to Rule 26(c) that would have drastically increased secrecy in the courts by allowing judges to enter secrecy orders “on stipulation of the parties” even if there was no “good cause” for secrecy. The rule changes were originally proposed by the Advisory Committee in the fall of 1994. On March 14, 1995 the Judicial Conference rejected the changes, despite the Committee’s unanimous endorsement. The Committee again endorsed the proposed changes, but after an extensive coalition was organized by TLPJ (Trial Lawyers for Public Justice) and ATLA, the Committee decided not to pursue the proposals. 203. Changes to the Rules of Appellate Procedure to take effect September 3, 1996. 1. Right of appeal: Section 4000 now reads: An aggrieved party may appeal from a final judgment except as otherwise provided by law. The rule previously had mirrored the language of §52-263 of the General Statutes, which provided that a party: . . . may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in §8-8 and §8-9. 57 Although the commentary to the new rule states that the rule has been “clarified” to refer only to “final judgment,” and that the new rule is not meant to restrict appeals from non-final orders where allowed by statute or otherwise, the change will no doubt engender substantial confusion. At a time when the superior court rules are being amended to reflect provisions in statutes, the appellate rules are being “clarified” to delete reference to statutory provisions. The practitioner will not be able to determine what is appealable by looking at the rule. It will be necessary to review the general statutes in order to ascertain, for example, that in Connecticut, unlike federal practice, a decision setting aside a verdict is appealable. In federal practice the grant of a new trial for exactly the same reason that a verdict might be set aside in state practice is not appealable. 2. Appeals from judgments disposing of part of issues, or part of the parties, but not terminating the litigation: This vexing area of appellate practice has now been clarified in §§4002A, 4002B, 4002C and 4002D. (a) Appeal of judgment on entire complaint, counterclaim or cross complaint. §4002A expands the rule. The previous rule referred only to judgments obtained by rulings on motions to dismiss, motions to strike and motions for summary judgment. The new rule clarifies that so long as an entire complaint, counterclaim or cross complaint is disposed of, it is an appealable final judgment regardless of whether it was obtained by a ruling on a motion to dismiss, to strike, or for summary judgment. The rule has added the phrase “or otherwise,” such as following a bifurcated trial. If such a judgment is rendered, an appeal must be taken or notice of intent to appeal under the new §4002D must be filed to preserve the right of appeal. If it is not filed, it will be lost. (b) Appeal of judgment on part of complaint, counterclaim or cross complaint that disposes of all claims brought by or against one or more parties. If the judgment does not dispose of the case against everyone, but does dispose of all claims against a particular party or parties, such a judgment is now construed as final regardless of whether the judgment was rendered by the granting of a motion to strike, motion to dismiss, or motion for summary judgment “or 58 otherwise.” The appeal from this kind of a judgment may also be deferred by filing a notice of intent to appeal under §4002D. (c) Appeal of judgment that does not dispose of all claims. The rule provides that when a judgment has been rendered that disposes of fewer than all the causes of action in a complaint, counterclaim or cross complaint, and that the judgment does not dispose of all claims against a particular party, the judgment shall not constitute a final judgment for purposes of appeal unless the trial court makes a written determination that the issues resolved by the judgment are of such significance to the outcome of the case that the delay incident to an appeal would be justified. The chief justice or chief judge of the appellate court must concur in the trial court’s determination. The rule sets out the procedure for obtaining written determination of the trial court and the chief justice’s or the chief judge’s concurrence. (d) Notice of intent to appeal, and objection. Section 4002D provides for deferring the appeal until final judgment is rendered that disposes of the case for all purposes as to all parties. The rule provides that a judgment described in §4002A or §4002B may be deferred by the filing of a notice of intention to appeal within the appeal time. There is a significant change, however, as the rule provides that an objection to deferring the appeal may be made by any party who is no longer a party by reason of the ruling in question. The objection has to be filed within 20 days of the filing of the notice of intent to appeal. If the objection is filed, the appeal “shall not be deferred, and the appellant shall file the appeal within 20 days of the filing of such notice of objection.” The rule also specifically provides in subsection (b) that failure to file a notice of intent to appeal when required is fatal, and raising of such issues in a later appeal will be subject to dismissal as untimely. The rule also provides that the use of notice of intent to appeal is abolished in all instances except those provided in this rule. 59 3. Responsibility of appellant to provide adequate record. Section 4007 now provides: It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this rule, the term “record” is not limited to its meaning pursuant to Sec. 4013(a)(2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety. The comment to this rule clarifies that it is not the responsibility of the appellant to provide an adequate record for issues raised by the appellee. 4. Appeal period, the event which triggers it, and extensions. Section 4009 has been completely revised. It is now broken up into four subsections, dealing with the appeal period, the effect of motions filed prior to taking appeal, the effect of motions filed after appeal but before the expiration of the appeal period, and adds the requirement that motions be filed simultaneously. (a) The appeal period and event which triggers it. The rule now provides that a party has 20 days from the commencement of the appeal period to file the appeal. The period commences on the date notice of the judgment or decision is given. If notice is given in open court, the appeal period commences at that time. If notice is given by mail, the appeal period shall commence on the date the notice was mailed to the parties by the trial court clerk. In a criminal case, where the appeal is from the judgment of conviction the appeal period commences when sentence is pronounced in open court. In civil jury cases, if no 320 or 321 motions are filed, the appeal period commences upon the expiration of the period, or any extension thereof, for the filing of such a motion. If a 320 or 321 motion is filed, or if a motion for determination of collateral source payments is filed within the appeal time, the appeal time is deferred until the issuance of notice of the decision on the last such outstanding motion. 60 (b) Motions filed before the appeal is filed. Subsection (b) of the rule contains the tolling language that if any party files a motion, which, “if granted would render the judgment or decision appealed from ineffective, a new appeal period shall commence upon the issuance of notice of the decision on the last such outstanding motion.” The rule gives examples of the motions that would render a judgment or decision ineffective. They include, but are not limited to: Motion to open judgment Motion for new trial Motion to set aside verdict Motion for judgment notwithstanding the verdict Motion to reargue the judgment or decision being appealed Motions for collateral source reduction Motions for clarification, motions for articulation, and motions made pursuant to §334A do not toll the appeal time. The rule also specifically refers to a motion for additur or remittitur, provides that if such a motion is filed within the appeal period, including any extension of the appeal period, a new appeal period shall commence upon the earlier of the acceptance of the additur or remittitur or the expiration of the time set for such acceptance. If the motion for additur or remittitur is denied, a new appeal period commences upon the denial of the motion in open court, or the date the notice of the denial is mailed by the trial court clerk. The rule also now contains a provision that when a new appeal period has commenced, such period may be extended pursuant to §4040(a) unless there has already been an extension. (c) Effect of a motion filed after the appeal but before the expiration of the appeal period. In this uncommon situation subsection (c) of the rule provides that if the motion is timely, that is, filed within the appeal period, and it is a motion which, if granted would render the judgment or decision ineffective, further processing of the appeal shall be stayed. When all such motions have been decided, the 61 appellant, within 20 days of the notice of the decision on the last such outstanding motion, is now required to file a statement with the appellate clerk that such motions have been decided, together with a copy of any decision on such a motion. The filing of this statement by the appellant terminates the stay of appellate proceedings, and the date of the filing of the notice shall be treated as the date of the filing of the appeal for the purpose of filing further appellate papers. (d) Motions must be filed simultaneously. This new provision of the rule provides that motions under §320 or §321 or any motion which, if granted would render the judgment or decision appealed from ineffective, “shall be filed simultaneously, insofar as simultaneous filing is possible.” 5. Documents that must be filed with the appeal (§4013). Come September 3, 1996 it will be necessary in civil cases to file the following documents with the appeal: (a) Preliminary statement of issues. There is no change, except that the appellee now has 20 days instead of 14 days to file his preliminary statement of issues. (b) Preliminary designation of pleadings in the trial court file. The rule now provides that a preliminary designation be filed. A revised designation must now be filed at the time the brief is filed. (c) Transcript documents. Either a certificate stating no transcript is necessary, or that the transcript has already been received, or a copy of the transcript order form. (d) Docketing statement. There is no change in this provision. (e) Preargument conference statement. There is no change in this provision. (f) A draft judgment file prepared in the form prescribed by §336 of the Practice Book. Section 336 refers to form 107.1. In this connection it is useful to refer to the 2 Connecticut Practice Book Annotated 62 286, which has an extensive commentary on form 107.1. A procedure is set out in the new rule which gives the appellee an opportunity within 20 days of the filing of the draft judgment file to disagree with it, with a specific statement, or a separate draft judgment file. The appellate clerk then transmits the appellant’s draft and whatever the appellee files, if anything, to the trial court clerk. The trial court clerk is required within 20 days of the receipt of the documents from the appellate clerk, after consultation with the trial judge if necessary, to file the original judgment file. The appellate clerk then sends copies to all counsel of record. (g) If the constitutionality of a state statute has been challenged, a notice identifying the statute, the name and address of the party challenging it, and whether the statute’s constitutionality was upheld by the trial court must be filed. The appellate clerk is then required to send a copy of the notice to the attorney general. The rule has not been changed with respect to the amendment of 4013 documents. The preliminary statement of issues and designation can be amended of right until the brief is filed. The docketing statement can be amended at any time. Amendment to the transcript documents may not be made without permission of the court. If permission is granted the opposing party shall have the right to move for permission to file a supplemental brief and for an extension of time. Amendments to the preargument conference statement are not to be presented in writing, but may be presented orally at the preargument conference, if one is held. The rule continues to provide in subsection (c) that failure to comply “shall be deemed” as sufficient reason to schedule a case for sanctions or for dismissal. 6. Fees and security. Section 4015 has been amended to delete the requirement for security for costs. The rule now merely covers fees, and expressly provides that security for costs is not required to take an appeal, but security may at any time, on motion and notice to the appellant, be ordered. If security is ordered, it shall be filed with the trial court. 7. Transfer of cases. Section 4023 now provides that when the Supreme Court transfers a case from the Appellate Court to the 63 Supreme Court, or transfers a case from the Supreme Court to the Appellate Court, the clerk is required to notify all parties and the trial court clerk that the appeal has been transferred. There shall be no fee on the transfer. The appellate clerk may require the parties to take such additional steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred. This refers to the newly created difference in the number of copies of the record and briefs between the Appellate and Supreme Courts. Section 4024 now requires a party to move for transfer from the Appellate Court to the Supreme Court. The motion, addressed to the Supreme Court, must specify the reasons why the party believes that the transfer should be made. It is no longer permissible to send a letter to the clerk requesting transfer. The filing of a motion for transfer with the Supreme Court does not stay proceedings in the Appellate Court. 8. Extensions of time. Section 4040 now has a provision that the time to appeal may be extended by the trial judge up to 20 days, except that the extension “shall be of no effect if the time within which the appeal must be taken is set by statute and is a time limit that the legislature intended as a limit on the subject matter jurisdiction of the court to which the appeal is taken.” The quoted language is new, and is based on Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993), which held that compliance with a statutory appeal period may effect the court’s jurisdiction over an appeal, and is an issue that must be determined on a statute-by-statute basis. Subsection (c)(1) has been amended to provide expressly that only an original need be filed, and that certification must comply with §4014 and must also indicate that a copy has been sent to each of the movant’s clients. 9. Automatic stay of execution. Section 4046 has been amended to provide that any stay of proceedings in effect during the pendency of the appeal shall continue until the time for filing a motion for reargument has expired, and if a motion is filed, until is disposition, and if granted until the appeal is finally determined. The rule also provides that if no stay was in effect during the pendency of the appeal and the appellate decision would change the position of any party from its position during the pendency of the appeal, all proceedings to force or carry out the appellate decision shall be stayed until the motion for reargument time has expired, or, if filed, until its disposition. 64 Section 4048 now provides for a stay of execution where the death penalty is imposed. In this circumstance, pretty much any proceeding seeking a new trial or a reversal will effect an automatic stay. Section 4049 continues to provide that the sole remedy of any party desiring the court to review an order concerning a stay of execution is by motion for review under §4053. In the past an order terminating the stay of execution was stayed for only five days in order to allow time to file a motion for review. This has been now changed to 10 days. 10. Articulation and rectification. An original and three copies of the motion for articulation or rectification must be filed with the appellate clerk. Statements in opposition are also filed with an original and three copies. If any party requests a hearing, and it is “deemed necessary” by the trial court, that court will hold a hearing. The trial judge is now required to file the decision on the motion with the appellate clerk. The rule now provides that the sole remedy of any party desiring review of the trial court decision on such a motion shall be by motion for review under §4054. The most significant change is that time limitations have now been imposed. A motion for rectification or articulation “shall be filed within 35 days after the delivery of the last portion of the transcripts or, if none, after the filing of the appeal.” If no memorandum of decision was filed before the filing of the appeal, the 35 days will run from the filing of the memorandum of decision. The 35 day deadline can be extended. The rule expressly provides that no motion for rectification or articulation shall be filed after the filing of the appellant’s brief, except for good cause. A motion for further articulation may be filed by any party within 20 days after the issuance of notice of the filing of an articulation by the trial court. The comment to the rule points out that “good cause” for the filing of a motion for articulation after the appellant’s brief has been filed would include surprise to the appellee caused by the raising of an issue in the appellant’s brief that was not included in the preliminary statement of issues. 11. Motion for review. Changes in §4053 now make it clear that the existence of an appeal is not a prerequisite to the filing 65 of a motion for review, and that a motion for review can be filed with regard to rulings relating to an appeal that is contemplated but not yet filed. The period for filing a motion for review is 10 days from the issuance of notice of the order sought to be reviewed. 12. Forcing the trial court to write a decision. Section 4059 has been revised “for clarity.” It now provides that in decisions which constitute a final judgment for purposes of appeal the court is required to either orally or in writing state its decision on the issues. If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision, the appellant can file with the appellate clerk a notice that the decision has not been filed in compliance with the rule. The notice must specify the trial judge, the date of the ruling for which no memorandum of decision was filed, and the appellate clerk will “promptly” notify the trial judge. 13. Briefs. The provisions concerning briefs are now contained in §4064 to §4064J. They previously had been contained in §§4065 to 4078. Important changes are: 66 (a) §4064. Section 4064 now provides, as does §4064A, that the plaintiff and defendant shall be referred to as such rather than as appellant and appellee wherever it is possible to do so. (b) Format; copies (§4064A). (1) Unless ordered otherwise, the brief shall be copied on one side of the page only. The font cannot be smaller than 12 point and “no attempt should be made to reduce or condense the typeface in a manner that would increase the content of the document.” Script typeface cannot be used. Although the rule states that “unless otherwise ordered” the brief shall be copied on one side of the page, the comment to the rule states that it is the “intent of the Supreme Court that briefs initially filed in that court be printed on both sides of the page.” The rule doesn’t say this, and the comment, to say the least, is puzzling. (2) In the Supreme Court, an original and 25 copies of the brief and appendix must be filed. The certification need be attached to the original brief only. It is necessary to certify that the brief has been sent to counsel and to the trial judge. (3) If the appeal is in the Appellate Court, an original and 15 copies must be filed. (4) An appendix of any length can be reproduced on both sides of a page. An appendix in excess of 50 pages must be reproduced on both sides. An appendix in excess of 100 pages must be separately bound. (5) The color code is the same: light blue for appellants; pink for appellees; white for reply briefs; light green for amicus curiae. A back cover is not necessary, but if one is used, it must be white. 67 (g) Page limitations and time for filing (§4064B). (1) There has been no change in page limitations or time for filing briefs. The chart below sets out the page limitations and time requirements: No Cross Appeal Cross Appeal Time 45/30/20 45/30/30/20 Pages 35/35/15 35/50/40/15 (2) A party whose interest will not be affected by the appeal and who does not intend to file a brief must inform the appellate clerk of this intent before the deadline for filing the appellee’s brief. If an appellee supports the position of an appellant, that appellee must meet the appellant’s time schedule for filing a brief. (3) Permission for oversized briefs must be addressed to the chief justice or the chief judge by letter, filed with the appellate clerk, stating the “compelling” reason for the request and the number of additional pages sought. (4) If a state constitutional issue is raised as an independent ground for relief, the clerk “shall, upon request by letter, grant an additional five pages for the appellant and appellee briefs, and an additional two pages for the reply brief, which pages are to be used for the state constitutional argument only.” (h) Appellant’s brief (§4064C). Although the comment to this rule says that some sections of the rule were “rewritten for clarity,” there are three changes: (1) The argument on each point raised must include a separate “brief” statement of the standard of review that the appellant believes should be applied. (2) Unless essential to review a claimed error, a “verbatim statement of the entire charge” to the 68 jury should not be included in the brief or appendix. It is difficult to understand how an appellate court can review the charge “as a whole” without the entire charge being reproduced in the appendix. (3) Organization of brief: The brief must now be organized in the following order: Table of Contents Statement of Issues Table of Authorities (For Amicus) Statement of Interest of the Amicus Curiae Statement of Facts Argument Conclusion and Statement of Relief Requested Signature Certification Pursuant to §4014 The only change is that the table of contents, if used, as it is not required, now comes first. In the past the universal practice was to put the statement of issues first, and then the table of contents, if used. (i) Appellee’s brief (§4064D). (1) The appellee must include a separate brief statement of the standard of review that should be applied. (2) The organization of the brief is the same as for the appellant. (3) If there is a cross appeal, the brief must clearly label which sections of the brief refer to the appeal and which to the cross appeal. (j) Amicus brief (§4064F). An application for permission to appear as amicus curiae and to file a brief must be filed within 20 days after the filing of the brief of the party whom the applicant intends to support, if any. If none, the application must be filed no later than 20 days after the filing of the appellee’s brief. The length of the amicus brief, if amicus status is permitted, “shall not exceed ten pages unless a specific request is made for a brief of 69 more than that length.” If the amicus wants a longer brief, the application must specifically set forth the reasons to justify the filing of a brief in excess of ten pages. The rule now provides that an amicus curiae “may argue orally only when a specific request for such permission is granted by the court in which the appeal is pending. 70 Provision is now made for the Attorney General to appear and file a brief as amicus of right if an appeal in a non-criminal matter involves an attack on the constitutionality of a state statute. The Attorney General must give notice of his intention to appear and file a brief on the same time frame that the brief is due of the party whom the Attorney General supports. The Attorney General’s brief will be due 20 days after the filing of this party’s brief. (k) The appendix (4064G). (1) The rule now provides that multiple appendices are not permitted. It also sets out what the court considers the “appropriate” function of an appendix. The rule now provides that an appendix is not required in either a court or jury case, except where an opinion is cited that is not officially reported, in which case the text of the opinion has to be in the appendix. The rule suggests that the appendix may be used to excerpt lengthy exhibits or quotations from the transcript, or to include portions of the charge or the requests to charge. The rule states that to “reproduce a full transcript or lengthy exhibit when an excerpt would suffice is a misuse of an appendix.” (2) The pagination is now set out. Pages must be numbered consecutively and preceded by the letter “A,” for example A1, A2, A3. Besides a table of contents, if testimony is excerpted the appendix “shall also have an index of the names of witnesses whose testimony is cited within it. If part of the testimony of a witness is omitted, this must be indicated by asterisks, and after giving the name of the witness, the appendix must indicate the party who called the witness, and whether the testimony was elicited on direct, cross or other examination. (3) Section 4064H requires that a decision not officially reported must be included in the appendix. 14. Preargument conference. Section 4103 now sets out the matters to be considered at a preargument conference. They are: (a) Possibility of settlement; (b) Simplification of issues; 71 (c) Amendments to the preliminary statement of issues; (d) Transfer to the supreme court; (e) Timetable for the filing of briefs; (f) En banc review; and (g) Such other matters as the conference judge shall consider appropriate. 15. Oral argument. Section 4108 provides that the time “occupied in the argument of any case shall not exceed one half hour on each side, without special leave of the court, granted before argument begins.” The Appellate Court beginning in April 1996 has restricted argument to twenty minutes for each side. The Appellate Court assignment list beginning in April 1996, citing Practice Book §4108, states: The time for oral argument is limited to twenty minutes for each side. It is always a mistake to read an argument from a prepared text. Section 4109(a) states that “oral argument should clarify and focus arguments in the written briefs. The court discourages oral argument read from a prepared text and lengthy quotations from legal precedents, the transcript, or the record.” The same rule also now provides that “counsel should assume that the court has read the briefs in advance of oral argument.” It also now states that rebuttal argument must be confined to points presented by the argument of opposing counsel. 16. Consideration en banc and reconsideration when the court is evenly divided. Section 4111 provides that when the court is evenly divided as to the result, it shall “reconsider the case, with or without oral argument, with an odd number of justices or judges.” Section 4112, now captioned “Consideration en Banc” provides that before a case is assigned for oral argument the chief justice or chief judge may order on motion of a party or suo motu that the case be heard en banc. After argument but before decision the entire court may order that the case be considered en banc. If this occurs, either reargument en banc shall be ordered, or the justices or judges who did not hear oral argument shall listen to the tapes of oral argument before participating in the decision. 17. Costs. Section 4118 now provides that a bill of costs must be filed with the Appellate clerk no later than 30 days after the notice of the appellate decision or the denial of a motion 72 for reargument, or the denial of a petition for certification, whichever is latest. 18. Motions for reargument or reconsideration and motions for en banc reargument (§4121). The rule has been modified slightly to require that the motion filed with the appellate clerk be accompanied by a receipt showing that the fee for the motion was paid or waived. The ten day requirement has not been changed. The time runs from the date of official release of the decision. The fee may be paid to any trial court clerk in the state. It is no longer necessary to file a separate motion for reargument en banc. The rule now specifically states that as part of the motion for reargument or reconsideration, a party may also request reargument en banc by captioning the motion “for reargument or reargument en banc” and requesting such relief in the alternative. The fee for the motion for reargument is new, created in Public Act 95-176, §5(b), and is $60.00. 19. Petition for certification. There has been no change except that if a waiver of fees, costs and expenses has been granted no fee need be paid the trial court clerk. In addition, no fee is charged in workers’ compensation cases. Subsection (b) of the rule restores the cross petition for certification practice which existed before 1986. The rule now provides for a cross petition within 10 days of the filing of the original petition. If the petition is granted §4138 now provides that security is unnecessary. All the appellant need do upon the granting of a petition is certify that the fees have been paid and file a docketing statement. 20. Writs of error. The procedure for writs of error has been clarified and amplified in §4144. Public Act 95-176, §4 requires a filing fee in the amount of $250.00. Upon payment of the filing fee, the writ, if in proper form and if presented for signature within two weeks after the rendition of the judgment or decree complained of, “shall be allowed and signed by a judge or clerk of the court in which the judgment or decree was rendered.” The manner of service and return of the writ is set out in subsection (b). 21. Reservations (§4147). The rule has been rewritten to provide guidance to the practitioner in the preparation and 73 filing of reservations. The rule now requires that before any issue is reserved, counsel must file a stipulation which states the question upon which advice is desired, that the determination of this question by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy in judicial action, that the answers to the questions will determine or are reasonably certain to enter into the final determination of the case. The stipulation must also designate the pleadings which are necessary for the presentation of the questions to be reserved, and shall state the facts which are essential for the determination of the issue. 74 204. Statute barring testimony and evidence of plaintiff’s failure to wear seat belt, §14-100a(c)(4), upheld as constitutional. Bower v. D’Onfro, 38 Conn. App. 685, 688-696, cert. denied 235 Conn. 911-912 (1995). 205. Extensive changes to the Rules of Practice adopted. The May 9, 1995 Law Journal published 78 pages (p. 3C to 81C) on proposed revisions of the Rules of Practice. The changes included proposed amendments to the Rules of Professional Conduct, and changes to the Civil Rules, Criminal Rules and Juvenile Rules. Nearly all of the proposed rules were adopted, published in the July 25, 1995 Law Journal, to be effective October 1, 1995. A summary of the proposed changes affecting civil trial practice are as follows: 1. Rules of Professional Conduct: Rules 1.5, 1.8 and 7.2 have been amended to permit counsel to advance litigation expenses on behalf of a client without mandating that the client repay them. The rules now expressly provide (Rule 1.8(e)(1) that a lawyer may pay court costs and expenses of litigation on behalf of a client, the repayment of which may be contingent on the outcome of the case. The change in the rule was apparently motivated by an IRS ruling prohibiting the deduction of the expenses where the client remained responsible for the reimbursement of the same. The IRS, in those states that permitted attorneys to advance the costs contingent on the outcome of the litigation without the obligation of the client to reimburse the same, took a different position. It is unclear whether this will solve the problem with respect to the deduction of these expenses. There have been two ways in the past to treat these litigation expenses. The first is to not deduct them, and not count them as income when they are recouped. The second and more common practice has been to deduct the litigation expenses when advanced, and include the recovery of the litigation expenses as income. 2. Continuing legal education: The May 9, 1995 Law Journal contained extensive provisions concerning mandatory continuing legal education (§§48B to 48P). These were not adopted. A summary of the proposals appears in the CTLA Review published June 13, 1995, pp. 11- 12. 3. Proof of service: §123 of the Practice Book is amended to include the name and address of each party served on the certification 75 of service. This change has recently been adopted for appellate practice. 4. Oral argument of motions: §211 of the Practice Book has been completely rewritten. It provides for oral argument at the discretion of the court except as to motions to dismiss, motions to strike, motions for summary judgment and motions for judgment of foreclosure. The right to argue these motions is not absolute. The motion must still claim in a notation that oral argument is requested; it must be marked ready for adjudication in accordance with the procedure on the short calendar notice. A non-moving party may request argument provided the notice is filed the third day before the date of the short calendar. The court has the discretion to grant or require argument or testimony. This shall be done by the judge to whom the motion is assigned. If a case is designated for argument of right, or assigned for argument by the court, but a date for argument or testimony has not been set within 30 days of the date when the motion was marked ready, it may be reclaimed. The September 26, 1995 and October 3, 1995 Law Journals contained a special notice to members of the bar concerning the implementation of this rule, and the procedures for handling short calendar matters. This notice as it applies to civil and family short calendar matters reads as follows: CIVIL “AS OF RIGHT” MOTIONS All “as of right” motions will be printed on the short calendar. “As of right” motions are motions to dismiss, motions to strike, motions for summary judgment and motions for judgment of foreclosure. If any part has claimed an “as of right” motion for argument or testimony pursuant to Sec. 211(A) and has marked the motion ready pursuant to that section, the attorneys and pro se parties of record shall appear at the short calendar. The motion will have been assigned to a judge for a hearing on that date. If no party has claimed an “as of right” motion for hearing pursuant to Sec. 211(A), the motion shall be assigned to a judge who shall either decide the motion without hearing or, if the judge in his or her discretion determines that argument or testimony is required, shall assign a date for hearing. The clerk will notify the parties of the hearing date. CIVIL MOTIONS WHICH ARE NOT “AS OF RIGHT” All motions filed by the parties for which a hearing is not “as of right” will be printed on the short calendar. The attorneys 76 and pro se parties of record shall NOT appear on the short calendar date in connection with such motions. If the moving party wishes to request the court to allow argument or testimony on the motion, the movant shall so indicate on the bottom of the first page of the motion or on a reclaim slip. If a non-moving party wishes to request the court to allow argument or testimony on the motion, that party shall file and serve on all other parties, on or before the third day before the short calendar date, a written notice requesting same. On the short calendar date each such motion shall be assigned to a judge who shall either decide the motion without a hearing or, if the judge on request of a party or on the judge’s own motion determines that argument or testimony is required, shall assign a date for hearing. The clerk will notify the parties of the hearing date. MOTIONS ON THE FAMILY SHORT CALENDAR Pursuant to Practice Book Section 211, the Chief Administrative Judge of the Family Division has issued a standing order that the following short calendar procedures which were adopted by the administrative judges shall apply to family matters in lieu of the procedures for civil matters which are set forth above. Counsel and pro se parties shall appear for a hearing on the date of the short calendar in connection with all motions marked ready for argument. A telephone call-in or FAX procedure should be adopted uniformly throughout the state. A standard notice should be placed on all short calendars. All calendar notices should be standardized to provide that the moving party must notify the adverse party that he or she will be proceeding. A judicial district may require that all motions, except for matters of law, must first be discussed with Family Relations before being heard by the court. If this practice is adopted, a standard notice should be placed on all short calendars. Family Relations counselors should be available to discuss pending motions prior to the short calendar day if counsel or parties wish to do so. This information should be placed uniformly on all calendar notices. When calling in a ready marking, the moving party must designate if a case does not require a conference with Family Relations, 77 and cases requiring a conference should be assigned to a list posted in the courthouse on the date of the hearing. Family short calendars should be held in every judicial district on a weekly basis. Any motion on which the hearing is expected to last one hour or more may be specially assigned by the presiding judge for another day. 5. Exclusion of the public and sealing files: A new section, 211B, addresses exclusion of the public, sealing files and limiting disclosure of documents. This significant new rule provides that the court shall not order that the public, which may include the news media, be excluded from any portion of proceeding and further provides that the court shall not order that any files, affidavits, documents, or other matters be sealed or their disclosure limited, except as provided in this section. The exceptions are: (a) If the court concludes that a non-disclosure order is necessary to preserve an interest which is determined to override the public’s interest in attending the proceeding or in viewing the materials. Any such order shall be no broader than necessary to protect such overriding interest. If a non-disclosure order is entered, the court must, in open court, articulate the overriding interest being protected and specify its findings underlying such order. (b) Orders concerning sessions conducted pursuant to §46b-11, 46b-49, and 46b-122, or any other provision of the General Statutes under which the court is authorized to close proceedings. (c) No order excluding the public from any portion of a proceeding shall be effective until 72 hours after it has been issued. A right of appeal is given within 72 hours of the issuance to any person affected by a court order which limits the public’s right of access to any portion of a proceeding. No right of appeal is given for the sealing of documents. A similar rule has been adopted for criminal cases, §895. The comment to §895 which appears in the May 9, 1995 Law Journal should be consulted for the scope of the order. (The comment is not published in the July 25, 1995 Law Journal). It would appear to apply to voir dire, motion practice, and to the sealing of any court document in the file. 78 As a practical matter, because disclosure answers and depositions are no longer a part of the court file, and because private agreements may still be exacted concerning non-disclosure of evidence discovered during the litigation, the rule is likely to have limited effect on civil trial practice. 6. Disclosure of experts: The proposal made by CTLA, CBA, and CDLA amending §220 of the Practice Book has been adopted entirely by the Rules Committee, and published as part of the amendments to the Practice Book. The various organizations obtained consensus on this difficult issue, and submitted it to the Civil Rules Task Force, which promptly passed it on to the Rules Committee recommending adoption. The proposal has been adopted. An analysis of the new rule appears in the “Practice and Procedure” article in this issue. 7. Pretrial procedure mandating the availability by telephone of insurance personnel: Section 265 concerning pretrial procedure has been amended to provide that when a defendant is insured an adjuster from the defendant’s insurance company must be available by telephone at the time of the pretrial. The court has discretion to order the adjuster to attend. The court can nonsuit or default a party for the failure of any required person to attend a pretrial, or to be available by telephone for a pretrial session. The proposed rule mandated that when a defendant was insured and that insurance company had an adjuster with an office located within the state, the defendant or the adjuster were required to attend. This proposal caused a great deal of controversy, and resulted in the watering down of the rule, which now merely mandates that the adjuster be available by telephone. 8. Pretrial procedure: trial management conference and order may be issued at the pretrial: Section 265 now provides in subsection (h) for the scheduling of a trial management conference and the issuance of a trial management order by the court. Section 268 has also been amended to authorize specifically the issuance of a trial management order. Attorney Dale Faulkner’s lead article in this issue of the Forum addresses the desirability of the trial management order. 9. Statement of decision in orders which are appealable but do not terminate the proceeding: Section 334A has been amended to require a written decision in any decision which constitutes a final judgment but does not terminate the proceeding. Extensive changes in this respect have been proposed for appellate practice, but have not yet been adopted. 10. Acceptance of offer of judgment: Section 347 and 348 have been amended to reflect the change made in the acceptance of an offer of judgment by Public Act 94-20, providing that an offer of judgment may be accepted within 30 days after notice, but prior to the rendering of a verdict by a jury or an award by the court. 79 206. New edition of the Practice Book planned. In the late fall of 1995 notices appeared in the Law Journal that the Rules Committee is planning a new edition of the Practice Book, and solicited written comments from members of the bar who are users of the Practice Book concerning any changes they would like to see in the format, organization or contents of the book. It is too late now to comment, as the notices stated that comments must be received by December 29, 1995. There is no indication when we can expect the new edition of the Practice Book, other than it is in the offing. 80 3. REMEDIES 301. The status of the defendant is irrelevant in determining a defendant’s duty to remove snow and ice before the end of a storm. Sinert v. Olympia and York Development Company, 38 Conn. App. 844, 847-850, cert. denied 235 Conn. 427 (1995). In an action for personal injuries sustained in a fall on an icy sidewalk, the trial court instructed the jury that they should consider whether the storm in progress at the time of plaintiff’s fall made it impractical to require the owners of the building and their hired maintenance crew to have done something about the condition of the sidewalk where the fall occurred, keeping in mind the location of the premises, the use of the premises, the day of the week and the time of the day. Defendant claimed on appeal that this charge improperly instructed the jury as to the law with regard to “unusual circumstances” as stated in Kraus v. Newton, 211 Conn. 91 (1989). In Kraus, the Supreme Court held that “in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” 211 Conn. at 197- 198. The Appellate Court found that the circumstances that existed did not qualify as unusual. The trial court improperly instructed the jury to consider the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff. In determining the duty owed to a person injured on the defendant’s premises the status of the defendant has never been relevant. Accordingly the trial court improperly instructed the jury that it could find unusual circumstances based on the defendants’ status. Judgment for plaintiff was reversed and the case was remanded for a new trial. 81 302. A case of first impression defining willful conduct as it relates to Public Act 89-246, “An Act Concerning Aids Related Testing, Medical Information and Confidentiality.” §§19a-581 through 19a-592 Doe v. Marselle, 38 Conn. App. 360, cert. granted in part, 235 Conn. 915 (1995), reversed 236 Conn. 845 (1996). The trial court granted defendant’s Motion to Strike plaintiff’s Second Amended Complaint on the grounds that plaintiff failed to plead willful conduct on the part of the defendants as required by §19a-590. The court rendered judgment in favor of the defendants. Plaintiff appealed. The question before the Appellate Court was whether plaintiff alleged in her complaint that defendant willfully violated §19a-583, which statute provides in part: “No person who obtains confidential HIV- related information may disclose ... such information ....” In this case, the plaintiff, Jane Doe, in connection with a gall bladder operation, disclosed to her surgeon, Flores, and Flores’ surgical assistant Marselle, that she was HIV positive. Plaintiff alleged in her complaint that after conversing with Ms. Doe, Ms. Marselle consulted Dr. Flores and expressed her intention to disclose Ms. Doe’s HIV status to her sons whom she knew to be illegal drug users and acquaintances of Ms. Doe. Dr. Flores authorized Ms. Marselle’s disclosure provided that Ms. Doe’s identity be protected. Plaintiff further alleged that at no time did Flores inform Marselle that disclosing such information was in violation of Connecticut Statutes. Although plaintiff did not specifically use the word willful to describe Flores’ conduct, she claims that Dr. Flores’ conduct constituted willful conduct in violation of the statute. Plaintiff relies on the definition of willful extracted from Connecticut criminal cases in support of her view. The Appellate Court concluded that in the tort context “willful” is a term of art which means far more egregious conduct than the simple definition that plaintiff extracted from the criminal cases. The Court therefore found that the facts set forth in plaintiff’s Second Amended Complaint failed to allege willful conduct on the part of the defendant. The court affirmed the judgment of the trial court. In this opinion, the court discusses the definition of “willful” as it is defined in the world of torts. 82 303. Governmental immunity: reconsideration of Shore v. Stonington left open. Sarno, Conservatrix v. Whelan, 233 Conn. 524 (1995). The Supreme Court transferred this case to itself for the apparent purpose of reconsidering Shore v. Stonington, 187 Conn. 147 (1982), in which the Court had ruled that a police officer had no duty to exercise his or her discretionary authority to detain a drunk driver for the purpose of protecting the public. In a brief per curiam decision, however, the Court declined plaintiff’s invitation to reconsider Shore because it found the facts of this case would not give rise to liability even if Shore were to be overruled. “We therefore defer any possible reconsideration of Shore v. Stonington to another day.” 304. Respondeat superior: doctrine is available in intentional tort context if the conduct might be construed as a misguided effort in furtherance of employer’s business. Glucksman v. Waters, 38 Conn. App. 140, cert. denied 235 Conn. 914 (1995). Plaintiff was assaulted by a YMCA employee during a pick-up basketball game at the Stamford YMCA. Suit was commenced against the employee and the YMCA. The trial court directed a verdict against plaintiff on his respondeat superior count. The Appellate Court reversed. The Court provides an excellent elaboration of the respondeat superior doctrine as applied to intentional torts. A jury issue was presented, reasoned the Court, based on evidence that the employee would not have been on the basketball court but for his employee status; he had been responsible for keeping order on the court; and he attacked plaintiff in a “misguided effort” to prevent plaintiff from committing fouls and disrupting the game. 305. Convenience store worker shot during robbery: Parent company of employer held liable for inadequate security. Morris v. Krauszer’s Food Stores, Inc., N.J., Middlesex County Super. Ct., No. L-5305-93 (February 14, 1995), reported in 38 ATLA Law Rptr. 346 (1995). A verdict of $2.4 million was awarded by reason of the wrongful death of a 39-year old convenience store worker who was shot three times during a robbery, and later died. Plaintiffs claimed the store lacked (1) open, uncovered windows; (2) balanced lighting; (3) restricted escape routes; (4) video recorders; and (5) panic alarms wired to the police department. Plaintiffs also claimed that the defendant was liable because it exercised control over decedent’s employer by setting policy, carrying debt, guaranteeing debt, and assuming leases. 83 For a similar case, see Ward v. Shell Oil Co., reported at 14 Forum 7 (Jan/Feb 1996). 306. Does res ipsa loquitur apply to undetermined product defects? In an article captioned “Res Ipsa Loquitur and Indeterminate Product Defects: If They Speak for Themselves, What Are They Saying?,” 36 South Texas Law Review 353-384 (Apr. 1995), Jonathan M. Hoffman, a practicing lawyer in Portland, Oregon, analyzes how this issue is treated in the Restatement (Third) of Torts: Products Liability, §3. If a brand new television or home computer suddenly bursts into flames the first time the buyer turns it on, the circumstances “speak for themselves.” In this scenario, even absent expert testimony, circumstantial evidence supports an inference that the computer or television would not have done such a thing unless it was defective when it left the seller’s hands. The article analyzes this issue and is a useful reference in those cases where the product defect cannot be determined because the product has been destroyed, and the nature of the accident speaks of negligence. The article has been republished in 44 Defense Law Journal 673 (1995). 307. Right to a jury trial in a diversity case is a matter of federal law, not state law. State statute mandating court to award punitive damages not binding on district court. Younis Brothers & Company, Inc. v. CIGNA Worldwide Ins. Co., 882 F. Supp. 1468 (E.D. Pa. 1994). Plaintiff alleged that CIGNA was guilty of bad faith in refusing to pay a claim under a fire policy. The applicable Pennsylvania statute, 42 Pa CSA §8371, provides that “the court” may award prejudgment interest at 3% above the prime rate, punitive damages, and attorney’s fees. The District Court for the Eastern District of Pennsylvania held that withstanding the legislature’s intention not to provide a jury trial, in a diversity case, whether a party has a right to a jury trial is a matter of federal law, and accordingly the court held that the plaintiff was entitled to a jury trial on the question of punitive damages. 308. Falling merchandise a frequent problem at Wal-Mart. Head injury results in $3 million verdict. 84 Scharrel v. Wal-Mart Stores, Inc., reported at 95 LWUSA 5501 (6/19/95). A Denver, Colorado jury awarded $3 million to a plaintiff who sustained a closed head injury as a result of falling merchandise striking her in the head at Wal-Mart. Discovery disclosed that Wal-Mart’s policy of stacking floor merchandise as high as possible led directly to the accident that caused the closed head injury and related problems. Plaintiffs ascertained in discovery that in the last 25 years more than 17,000 claims of falling merchandise injuring customers or employees have been made against the Wal-Mart discount chain. In the last 3 years, Wal-Mart has had almost $1 billion in injury claims. The plaintiffs’ theme in the case was that Wal-Mart simply disregards the customer in its efforts to get as much merchandise as possible on the sales floor. The verdict included $1,027,243 for economic damages, $1,000,000 for physical impairments, $1,000,000 for noneconomic damages and $300,000 for plaintiff’s wife for emotional distress. 309. Conspiracy to commit a tort: is appropriate and may be pleaded separate from the tort of interference with business relationship. Talit v. Peterson, 15 Conn.L.Rptr. No. 5, 166, 1995 WL 584364 (1995). Judge Blue has done a superb job in tracing the history of conspiracy to commit a tort. His analysis begins with the statement that “the law of civil conspiracy abounds in contradictions.” Id. at 167. He notes that in Cole v. Associated Construction Co., 141 Conn. 49, 54 (1954) the Supreme Court stated that there is “no such thing as a civil action for conspiracy.” On the other hand, he states that the Supreme Court has not only acknowledged the existence of a civil action for conspiracy but helpfully enumerated the elements of that very action in Williams v. Maislen, 116 Conn. 433, 437 (1933). Judge Blue’s analysis, as usual, is thorough and scholarly. 310. Spouse has a cause of action for negligent and reckless misconduct against one who transmits a venereal disease to his or her spouse, who in turn, transmits the disease to the plaintiff spouse. 1 LWUSA is Lawyer’s Weekly USA, a bi-weekly newspaper published by Lawyers Weekly Publications, 41 West Street, Boston, MA 02111-1233. 85 Cerniglia v. Levasseur, 1995 WL 500673 (J.D. Hartford, 8/15/95, No. 548181). The complaint alleged that during the months of June, July and August of 1993 the defendant had sexual relations with the plaintiff’s husband. The complaint further alleged that the defendant did not disclose to the husband and to the husband’s spouse (plaintiff) that she was suffering from herpes, a sexually transmitted disease which she transmitted to the husband, who in turn transmitted it to the plaintiff. Judge Mary Hennessey held that the complaint stated a cause of action in negligence, but not in reckless and wanton misconduct. Her decision is based on the logical extension of the well-established rule that one who has a contagious disease must take the necessary steps to prevent the spread of that disease. This has been held for tuberculosis, small pox, scarlet fever, and similar contagious diseases. 311. 14-year old newspaper boy injured while delivering papers was independent contractor not entitled to workers’ compensation. DaSilva v. Danbury Publishing Co., 39 Conn. App. 653, cert. denied 235 Conn. 936 (1995). The findings demonstrated that on February 16, 1993 the plaintiff, then 14 years old, suffered an eye injury in the process of delivering the newspaper to residential subscribers in Danbury. The newspapers were dropped off each day at the plaintiff’s house for delivery to subscribers. The newspaper designated who the subscribers were. The newspapers were “purchased” by the 14-year old child at wholesale price, and sold to the subscribers on his route at a retail price suggested by the newspaper. Plaintiff kept all the money, including tips, received over and above the wholesale cost of the newspapers. He was billed each week by the newspaper company for the wholesale cost of the papers and was responsible for the payment of that bill, regardless of whether he was paid by the subscribers. The evidence set out the routine that newspapers across the state have established for many years. On these facts, the workers’ compensation commissioner found that the youngster was an independent contractor. Plaintiff argued that public policy required that he be protected under workers’ compensation laws because his minor status prevented him from understanding the ramifications of being an independent contractor. The Appellate Court rejected this argument on the basis that if accepted it would also have to accept that the plaintiff lacked the capacity to form a contract in the first instance. It stated that “[w]e leave the public policy concerns regarding newscarriers to the discretion of the legislature.” 86 312. A highway defect is a highway defect. A complaint alleging other theories will not get around the exclusive remedy provision of §52-557n as interpreted in Sanzone v. Board of Police Commissioners, 219 Conn. 179 (1991). Wenc v. New London, 235 Conn. 408 (1995). Plaintiff was a passenger in a car which slid on the highway and struck a utility pole. The action was brought against the City of New London and various divisions of the municipality and its employees. Allegations included claims of violation of §§19a-335 and 16-228 of the general statutes, which caused an absolute nuisance. The Supreme Court didn’t buy it. A highway defect is a highway defect, and the exclusive remedy is under the highway defect statute, as set out in Sanzone. 313. An owner of property who intervenes in an underlying administrative proceeding is a party to that proceeding for purposes of initiating an action for vexatious suit and tortious interference with a business relation. Zeller v. Consolini, 235 Conn. 417 (1995). Plaintiff sought damages from the defendants on the basis of tortious interference with a business relationship and vexatious litigation. Defendants had unsuccessfully sought a zone change of certain of plaintiff’s property in an attempt to block the construction of a shopping complex on that property. Plaintiff had signed a contract with the developer for the sale of the property for $4.3 million, provided plaintiff could deliver to the developer a final, non- appealable zoning certificate and zoning approvals regarding the property. Defendants filed an application with the zoning authority to rezone plaintiff’s property. Plaintiff intervened in that proceeding. When the application was denied, defendants appealed and plaintiff again intervened in the appeal. The trial court held that plaintiff was not a party to the underlying proceedings. The Supreme Court reversed, holding that the plaintiff was indeed a party to the underlying administrative proceeding, and the tort of vexatious suit can be based upon an administrative, rather than judicial, proceeding. See DeLaurentis v. New Haven, 220 Conn. 225, 248-249 (1991). The essential allegations for the tort of vexatious litigation is set out at 235 Conn. 424. Plaintiff must allege: 1. The previous lawsuit or proceeding was initiated maliciously. 2. That it was initiated without probable cause. 87 3. That it terminated in plaintiff’s favor. 314. Notice filed in highway defect action stating plaintiff retained a lawyer in connection with “injuries she sustained in a fall” and that she “was injured after she tripped over a defect in the sidewalk” held insufficient as a matter of law to satisfy the “general description” notice requirements of §13a-149 of the General Statutes. Martin v. Town of Plainville, 40 Conn. App. 179, cert. denied in part, 236 Conn. 912 (1996). The appellate court agreed with the trial court that Marino v. East Haven, 120 Conn. 577 (1935) controlled the outcome of the case. The court also concluded that “the principles of stare decisis and the fact that we are an intermediate court prevent us from re-examining or re-evaluating supreme court precedent.” 40 Conn. App. at 182. Accordingly the appellate court affirmed the judgment of the trial court that notice was insufficient under §13a-149. 88 315. The doctrine of Ely v. Murphy expanded to purveyors of alcohol to minors at a bar, even if the purveyors do not act as social hosts, so long as they knew, or had reason to know, that the person they were furnishing liquor to was not old enough to drink legally. Bohan v. Last, 236 Conn. 670 (1996). In Ely v. Murphy, 207 Conn. 88 (1988) the court imposed common law liability on social hosts who had provided alcohol to underage guests at a graduation keg party. It here expands Ely v. Murphy to companions of the intoxicated person who bought him drinks at a bar. The decision, authored by the Chief Justice, reviews the case law which declined to recognize a claim based on negligence on purveyors of alcohol. The decision notes that such claims have uniformly failed for the reason that the subsequent injury has been held to have been “proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about the intoxication and the subsequent injury.” An exception was carved in Ely v. Murphy, and now common law liability is imposed on anyone who furnishes alcohol to a minor, whether or not it is at a bar. The court stated (236 Conn. at 678): It is no great extension of Ely v. Murphy, supra, 207 Conn. 97, to hold that, under some circumstances, purveyors of alcohol to minors at a bar may be liable to such minors, or to innocent third parties, even if the purveyors do not act as social hosts. Wherever minors become intoxicated, whether in a bar or in a private residence, they are unlikely to appreciate fully the consequences of their intoxication. Wherever minors become intoxicated, their subsequent intoxicated misconduct creates a risk of personal injury and death not only to themselves, but also, as in Ely and as in this case, to innocent third parties. In light of Ely, we disagree, therefore, with the conclusion of the trial court that only a permittee bears legal responsibility for the service of alcohol to minors in a bar. 89 316. New rules for Jones Act cases adopted by U.S. Supreme Court. Chandris, Inc. v. Latsis, 115 S.Ct. 2172 (1995). Injured maritime workers who bring an action under the Jones Act will now have to pass a two-part test adopted by the U.S. Supreme Court. A worker won’t be able to impose liability because he worked for a maritime employer and was injured at sea. Rather, he must now show that the general overall nature of his work qualified him as a “seaman.” To meet this test, the plaintiff must show that: 1. His work contributed to the function of the vessel or to the accomplishment of its mission. This part of the test is very broad and easily satisfied, according to the court. 2. The worker had a connection to a vessel in navigation that was substantial in terms of both its duration and its nature. As a general rule, this means that a worker must have spent at least 30% of his time in the service of such a vessel, according to the decision. The 30% figure is “no more than a guideline” and “departure from it will certainly be justified in appropriate cases.” However, if the amount of time a worker spent connected to a vessel is “clearly inadequate,” the court may take the question from the jury and grant summary judgment for the defense. The decision also notes that mostly land-based employees may become a seaman if the employee’s duties change. Thus, even if an employee spent many years at a desk job before assigned to a vessel, this would not prevent that employee from being considered a seaman if his new duties qualified him as such. 317. Dissolution judgment not res judicata for tort action. Torts existing prior to the dissolution decree not merged in the decree. Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582 (1996). Plaintiff, whose marriage had been dissolved, sought damages from her former husband, his insurance agent and the defendant insurance company claiming that the former husband had perpetrated a fraud on her by forging her signature and cashing in a life insurance policy that she owned. The trial court rendered summary judgment in favor of the husband on the ground that the doctrine of res judicata barred the 90 plaintiff from bringing a post-dissolution action claiming damages for misconduct that had occurred during the marriage. The court held that the tort action was not barred by the doctrine of res judicata. The purpose of a tort action is to redress a legal wrong by the award of damages. It is not based on the same underlying claim as an action for dissolution, the purpose of which is to sever the marital relationship, fix the rights of the parties with respect to alimony and child support, and to divide the marital estate. Collateral estoppel may apply, but in this case the trial court in the dissolution proceeding did not make the necessary factual findings to support the application of the doctrine. Although evidence was presented regarding the forgery and the theft of the policy proceeds, the resolution of the fraudulent endorsement issue was not necessary to the dissolution court’s decision, and the court never mentioned it in its decision. Accordingly, the doctrine of collateral estoppel did not apply. 318. An unidentifiable victim has no claim in negligence against a psychotherapist who was treating the assailant on an out- patient basis. Fraser v. United States, 236 Conn. 625 (1996). Psychotherapists undertook to treat a psychiatric out-patient. The question presented was whether the psychotherapists assumed the duty to exercise control of the patient to prevent the patient from committing an act of violence against a third person. The action was brought under the Federal Tort Claims Act, 28 USC 2671 et seq. against the United States, through its employees at the West Haven Veterans Administration Medical Center. An out-patient at the West Haven VA had assaulted and fatally stabbed plaintiff’s decedent. Plaintiff claimed that the medical center was negligent in its treatment of the psychiatric patient because it failed to warn others of his violent propensities, and it failed to take reasonably necessary actions to control him in order to protect others. The District Court rendered summary judgment, and the Second Circuit held that there was no duty to warn, but asked the Connecticut Supreme Court to decide whether there was also no duty to control the psychiatric patient’s conduct so as to avoid harm to the decedent. The court held that considerations of public policy, which “undergird the judicial determination of the scope of duty in the law of negligence, likewise suggest that psychotherapists should not be held liable to third parties who are not foreseeable victims.” 236 Conn. at 634. 91 4. UNINSURED AND UNDERINSURED MOTORISTS INSURANCE 401. Supreme Court independently reviewed arbitration record. Substantial evidence supported denial of UIM benefits based on findings that plaintiff was a pedestrian and not occupying his car when struck. Almeida v. Liberty Mutual Insurance Company, 234 Conn. 817 (1995). The trial court vacated an arbitration award denying a claim for underinsured motorist benefits. The facts of the accident were hotly contested at the arbitration hearing. Plaintiff testified that the accident occurred after he had crossed the street, reached his car which was parked on the southern shoulder of the road and that as he placed his hand on the door handle his wife warned him of an oncoming vehicle. At that time he turned away from his car and headed back across the street at which time he was struck by the oncoming vehicle. At the point of impact he was three or four feet away from his car. The defendant claimed that the plaintiff’s testimony contradicted the police report, plaintiff’s prior assertions in his proof of loss statement and the assertions in plaintiff’s complaint filed against the driver of the oncoming vehicle. Defendant claimed that these statements demonstrated that plaintiff had not reached his car prior to the accident but was hit by the oncoming vehicle as he walked across the street. The arbitration panel unanimously denied plaintiff’s claim. In its decision the panel recounted the plaintiff’s testimony. The panel stated that plaintiff’s testimony established that he was not “in” the vehicle, “getting in” the vehicle, “getting on” the vehicle, “getting out” of the vehicle or “getting off” the vehicle since his back was turned towards his car, which he had not entered, and was three to four feet away from it. The panel stated that the Supreme Court has held that the word “upon” cannot be expanded to eliminate the necessity of physical contact with the insured vehicle, citing Testone v. Allstate Insurance Company, 165 Conn. 126, 133-134 (1973). The panel held that under the policy definition of “occupying” the claimant was not an occupant of his car when he was struck. The trial court granted the plaintiff’s application to vacate the arbitration award. The trial court concluded that the panel 92 improperly had required actual physical contact with the vehicle under the Testone decision where under certain emergency circumstances physical contact may not be required under a policy’s definition of “occupying”. The defendant then moved to open the trial court’s judgment on the basis of mutual mistake. Defendant submitted an articulation signed by two of the three arbitrators stating that they had not credited the testimony of the plaintiff. The trial court denied this motion stating that the articulation was not valid as it was only signed by two of the arbitrators. Defendant claimed on appeal that the trial court erroneously interpreted the award as a finding that the arbitrators had credited the plaintiff’s version of events. Defendant also claimed that there was substantial evidence to support the arbitrator’s award. The Supreme Court found that the arbitrator’s award did not make findings of fact but merely recited testimony. The Supreme Court found that the arbitrators accepted the plaintiff’s version of the facts as true for purposes of argument only. Accordingly the arbitrators did not make any findings of fact and the trial court therefore lacked the factual basis on which to decide whether the arbitration panel had improperly ignored the existence of an emergency exception to Testone. As the administrative record on appeal was identical to that before the trial court the Supreme Court found that a remand would not serve the interests of judicial economy. Accordingly the Supreme Court reviewed the record to determine whether there was substantial evidence to support the arbitrator’s award. The Supreme Court found on the basis of their independent review that there was substantial evidence to support the award. The judgment of the trial court was reversed and the case remanded with direction to render judgment confirming the arbitrator’s award. 402. In accident involving only one tortfeasor vehicle, claimant is required to exhaust the liability limits of both the owner’s and the operator’s policies. Ciarelli v. Commercial Union Insurance Companies, 234 Conn. 807 (1995). A three-person arbitration panel, with one arbitrator dissenting, concluded that the plaintiff was not entitled to 93 benefits because she had failed to exhaust the limits of one of the insurance policies applicable to the underinsured vehicle, the operator’s ITT policy. Plaintiff’s application to vacate the award was denied by the trial court. On appeal plaintiff claimed that (1) the decision of the Supreme Court in General Accident Insurance Company v. Wheeler, 221 Conn. 206 (1992) required exhaustion of the insurance policy of only one tortfeasor; (2) the language of the plaintiff’s underinsured motorist policy required the exhaustion of the owner’s or the operator’s insurance policy but not both; and (3) the operator’s insurance policy was not applicable because the operator’s vehicle had no connection to the accident. (1) The Supreme Court held that the trial court correctly determined that the plaintiff had not triggered her underinsured motorist coverage. With regard to plaintiff’s first claim, the Supreme Court found that the word “all” and the plural words “bonds” and “policies” found in §38a-336(b) would be meaningless if not read to require exhaustion of all the policies applicable to the underinsured vehicle at the time of the accident. “Common sense dictates that the legislature did not intend that the calculation as to whether a vehicle is underinsured encompasses all the applicable policies and, at the same time, intend the exhaustion requirement to mandate that the plaintiff exhaust only one policy of his choosing.” 234 Conn. at 812. The Supreme Court found that plaintiff’s reliance on the Wheeler decision was misplaced. That case dealt with multiple tort claims arising out of an accident involving more than one potentially at fault vehicle. “We did not envision the application of either our holding or our language in Wheeler to a situation concerning a single tort claim involving a single at fault vehicle, where the operator and owner of that vehicle each had a liability policy applicable to the accident at issue.” 234 Conn. at 813. The Wheeler decision was not intended to relieve the plaintiff of the burden to exhaust the limits of all policies applicable to the underinsured vehicle at the time of the accident, simply because each policy was held by a different person, each of whom might be characterized as a tortfeasor. (2) With regard to plaintiff’s second claim, the Supreme Court was unpersuaded that a policy provision stating liability coverage meant that underinsured motorist coverage was triggered by the exhaustion of the liability insurance of either the owner or the operator. This provision stated “We will pay compensatory damages which an insured is legally entitled to 94 recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by an insured; and 2. Caused by an accident.” 234 Conn. at 814-815. This policy provision was not an exhaustion requirement nor did plaintiff point to any provision in the contract that specified an exhaustion requirement for underinsured motorist coverage. The Supreme Court stated that exhaustion is a matter of statutory policy. The exhaustion requirement of §38a-336(b) was therefore incorporated into the plaintiff’s insurance contract. (3) As for the plaintiff’s third claim, the Supreme Court found that plaintiff misread Traveler’s Insurance Company v. Kulla, 216 Conn. 390 (1990) to provide that, for purposes of determining whether exhaustion has been accomplished, an insurance policy covering a motor vehicle not involved in an accident is not available to provide liability coverage for the owner of that vehicle who is operating a different motor vehicle that was involved in the accident. The Kulla decision however held that it is the sum of the policy limits applicable to the vehicle actually involved in the accident that must be considered in determining when underinsured motorist coverage is triggered. The judgment of the trial court was affirmed. 403. Residency is an issue of coverage rather than a question of law which should be submitted to arbitration for determination. Stevens v. Hartford Accident and Indemnity Company, 39 Conn. App. 429 (1995) Plaintiff filed an application to compel arbitration for underinsured motorist benefits under a policy issued by defendant insurer to plaintiff’s father. Defendant denied coverage claiming that plaintiff was not a resident of his father’s household. Defendant argued that residency was a question of law and a threshold issue to arbitration. Plaintiff argued that residency was a coverage issue and therefore ought to be submitted to arbitration pursuant to §38a-175c. The plaintiff, however, agreed to allow the trial court to decide this issue on the merits. Judge O’Connor heard the evidence, but died before rendering a decision. Judge Aronson, in reliance upon unsigned papers of Judge O’Connor, ruled that plaintiff was not a resident of his father’s household and therefore did not have standing to demand arbitration. Plaintiff appealed the decision of Judge Aronson. 95 The court held that Judge Aronson improperly based his ruling on Judge O’Connor’s unsigned papers and remanded the case. On remand, Judge Aronson declared a mistrial. Plaintiff then reclaimed the original application to proceed with arbitration as opposed to a retrial before the Superior Court. A hearing was held by Judge O’Neil who denied the application for arbitration on the basis of the merits of the issue of residency. The court denied plaintiff’s Motion for Reconsideration. The threshold issue before the court was whether residency is an issue of coverage or a question of law. The court concluded that the issue of residency is a coverage issue because it determines whether the plaintiff is an intended beneficiary of the insurance policy. The plaintiff therefore initially had the right to have the issue of residency decided by a panel of arbitrators. As the plaintiff agreed to have the trial court decide this issue, the court found that the plaintiff had waived his right to arbitration on this issue. Plaintiff argues, however, that because the submission to arbitration is mandatory pursuant to §38a-175c, the waiver is ineffective. The court reasoned that §38a-175c does not make that power obligatory, therefore, plaintiff’s failure to enforce his right to arbitration at the appropriate time amounted to a waiver. Plaintiff argued that once Judge O’Neil determined that the matter would be completed rather than retried after the mistrial, the plaintiff should have been given the opportunity to recall any necessary witnesses before the court rendered a decision. The court held that the parties should have been informed that the trial court had decided to render a decision based on its own findings and conclusions and afforded the opportunity to recall witnesses. The judgment was reversed and the case remanded for further proceedings in accordance with the decision. 404. Sufficiency of insured’s written election of underinsured motorist limits lower than liability limits presents question of law. General Accident Ins. Co. v. Powers, Bolles, Houlihan & Hartline, Inc., 38 Conn. App. 290, cert. denied 235 Conn. 904 (1995). Plaintiff insurer sued the defendant insurance agency for negligence and breach of contract for causing it to issue an underinsured motorist insurance policy without obtaining from the insured a “writing” required under §38a-336. The policy had been issued with UM coverage of $40,000 and liability coverage of $100,000 based on a written application from the insured requesting those limits. The insured was injured by an underinsured driver and thereafter submitted a UM claim demanding recovery up to the liability limits, less applicable setoffs, based on the contention that the lower UM limits were null and void under §38a-336. After paying on the claim, plaintiff sued the agency based on its alleged failure to obtain a 96 satisfactory “writing” under the statute. The jury found for plaintiff on the breach of contract count. The issue on appeal was whether the trial court properly charged the jury with respect to the writing requirement under §38a-336. The trial court had instructed the jury that the election of lower UM coverage must be in writing, and the decision by the insured must be purposeful and knowing. The Appellate Court found that this charge gave the jury inadequate guidance, and remanded the case for a new trial. The court found that the issue of the sufficiency of the writing was a question of law, and that a proper charge would have directed the jury to find one way or another depending upon how it resolved the underlying factual questions. It is ironic that the Appellate Court decision, which reverses on the ground of inadequate guidance in the jury charge, itself provides no real guidance for determining the ultimate question, i.e. what degree of proof is needed to establish that a writing is sufficiently knowing and purposeful to satisfy §38a-336. 405. Trial court properly allowed plaintiff to recover under the underinsured motorist policy provisions of the tortfeasor’s policy in addition to recovering under the liability provisions of the same policy. Court properly determined credits and offsets. Loika v. Aetna Casualty & Surety Co., 39 Conn. App. 714 (1995), cert. denied 236 Conn. 902 (1996). In a per curiam decision the Appellate Court adopted the Superior Court decision of Judge Gaffney, 44 Conn. Sup. 59 (1995), also published in the November 21, 1995 Law Journal. Plaintiff’s 14-year old daughter was fatally injured as a passenger in a pickup truck owned by Benedetto and operated by Cote. Benedetto had $20,000 liability coverage with the Hartford. Cote had $100,000 liability with the Allstate. Both these sums were paid to the plaintiff, and both were maximum per person limits under the terms of the respective policies. Allstate, Cote’s insurer, also paid $162,992 to four other claimants involved in the accident. The accident occurred April 6, 1990. Plaintiff brought the present action against Aetna and Allstate, seeking to stack both policies, which had $400,000 total coverage when stacked ($200,000 each). The parties stipulated that the plaintiff’s damages were at least $400,000. The trial court permitted recovery under the UIM provisions as well as the liability provisions of the Allstate policy, and refused to permit Allstate to take a credit for the $162,992 that it paid to other claimants. It did, however, give Allstate a credit of $120,000 97 against its $200,000 limits on UIM coverage, and refused to give Aetna any credit with respect to the $120,000 paid to the plaintiff. 406. “Other insurance” clause held ambiguous and therefore required construction in favor of claimant where claimant was injured by an uninsured motorist while a pedestrian. O’Brien v. United States Fidelity and Guarantee Company, 235 Conn. 837 (1996). While a pedestrian the plaintiff sustained injuries from being struck by an uninsured motor vehicle. The plaintiff was insured under a personal automobile liability policy issued to him by the defendant. He was also insured, as a resident relative, under his father’s automobile liability insurance policy issued by Aetna. Each policy contained an “other insurance” clause which stated the following: “If there is other applicable similar insurance, we will not pay for any damages which would duplicate any payment made for damages under such similar insurance. However, any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such applicable insurance.” 235 Conn. at 839. The arbitrator determined that the plaintiff’s claim was worth $35,000.00 and should be allocated pro rata between the insurers. Plaintiff applied to vacate the arbitration award. The court upheld the decision of the arbitrator and noted that the benefits available under the Aetna policy were no longer available because plaintiff had not applied for them during the period provided in the policy. The supreme court stated that they had previously interpreted an excess clause identical to the one at issue in the present case in Aetna Casualty and Surety Company v. CNA Insurance Company, 221 Conn. 779 (1992). The supreme court concluded that the first sentence of the excess clause neither prohibited a claimant from seeking full indemnification under the policy nor permitted him to do so. They stated that in order to determine the intent of the policy they must look to the clause as a whole and read both sentences in that context. 235 Conn. at 847. The supreme court held that the defendant’s excess clause was ambiguous as to coverage under the circumstances of the present case, that is, whether the policy contemplated providing excess coverage when a claimant, while a pedestrian, had been injured by an uninsured motorist. Accordingly, construing the clause in favor of the plaintiff and “in conformance with an insurance consumer’s objectively 98 reasonable expectation, we hold that the clause does not apply when a plaintiff is injured while a pedestrian. Consequently, because the clause does not apply in this situation, the clause did not create an obligation on the plaintiff’s part to pursue a claim against Aetna in order to be indemnified fully.” 235 Conn. at 849. The supreme court also stated that it would not be against public policy to enforce an insurance contract which included a pro rata “other insurance” clause if the provision was clear and unambiguous. 407. In an underinsured motorist claim, the effect of collateral estoppel on a plaintiff’s demand for arbitration is not a coverage issue to be decided in arbitration, but rather a threshold issue to be decided by the court. Roberts v. Westchester Fire Insurance Co., 40 Conn. App. 294, cert. denied 236 Conn. 915 (1996). Plaintiff, who sustained injuries as a result of a motor vehicle collision, obtained a judgment in excess of the tortfeasor’s insurance coverage. Plaintiff then sought to pursue an underinsured motorist claim against her insurance carrier. Unable to resolve the amount of damages, Plaintiff demanded that the issue of damages be resolved by arbitration pursuant to the terms of her insurance policy and Connecticut General Statute §38a-336, the effect of which is to remove from the court and to transfer to the arbitration panel the function of determining all issues of coverage. Defendant objected, claiming that the plaintiff was collaterally estopped from relitigating the issue of her damages. The trial court granted plaintiff’s application and the defendant appealed. On review, the Appellate Court reversed the judgment of the trial court, finding that the determination of the effect of the collateral estoppel doctrine did not require the court to interpret the language of the policy, and therefore was a threshold issue for the court to decide, not a coverage issue to be decided in arbitration. Judgment reversed, and the case remanded for further proceedings, including consideration of whether the plaintiff is collaterally estopped from relitigating the issue of damages. 99 5. INSURANCE LAW 501. Insurance company cannot deny recovery to innocent third party victim for tortfeasor’s intentional material misrepresentation where notice of cancellation of auto insurance policy is not sent until after accident occurs. Munroe v. Great American Insurance Company, 234 Conn. 182 (1995). Defendant insurance company issued M a binder for liability coverage while his application for insurance was pending. After the issuance of the binder, plaintiff was involved in an automobile collision with M and made a claim against defendant insurance company. Defendant counterclaimed denying liability to plaintiff because defendant revoked and rescinded M’s insurance coverage upon discovering intentional and material misrepresentations in his application. Twenty-one days after the collision and fifty-six days after the issuance of the binder, defendant sent a notice to M’s alleged wife that the application for insurance had been “rejected” and that coverage was “rescinded”. The court concluded that “the compulsory automobile insurance statutes, read as a whole, abrogate the right of an insurer to rescind automobile insurance ab initio, so as to deny recovery to an innocent third party victim. The insurance policy therefore remained in effect. The court did not, however, address the issue of whether a different result would be had in an action directly between the insured and the insurer. 502. Late notice defense to coverage. The Wrong War, the Wrong Time, The Wrong Enemy: Insurers’ Allegations of Late Notice are Untimely When Underlying Actions are Pending, 31 Tort and Insurance L.J. 712 (1996). In this article by Rhonda D. Orin the argument is made that insurance defense because of late notice when a lawsuit is pending is always and everywhere wrong. Late notice is a factual issue, and factual issues have no bearing upon the duty to defend ongoing lawsuits. Rather, the duty to defend is a broad duty typically arising whenever the nature of third party claims against policyholders potentially fall within the scope of the policies at issue. The author concludes that courts have failed in many cases to examine the issue carefully. Due to this inexact analysis, courts often fail to recognize that factual issues regarding late notice should not be 100 considered when attempting to determine whether an insurance company has a duty to defend its policyholder in an ongoing lawsuit. 101 6. WORKERS’ COMPENSATION 601. Voluntary agreement was not binding because it was not sent to the parties after its approval. Therefore City of Shelton was not precluded from reducing plaintiff’s weekly benefit. Wannagot v. Shelton, 38 Conn. App. 754, cert. denied 235 Conn. 919-920 (1995). The plaintiff dependent widow of a volunteer firefighter appealed to this court from the decision of the Workers’ Compensation Review Board affirming the reduction of her survivor’s benefits. Pursuant to a voluntary agreement, benefits of $719.00 per week were initially paid to the plaintiff. This sum represented the maximum weekly compensation rate of 150% of the average production wage for the fiscal year July, 1989, through June, 1990. At the request of the Appellate Court the parties addressed the issue of whether the city was precluded from reducing the plaintiff’s weekly benefit because the payments were made pursuant to a voluntary agreement. Section 31-296 of the General Statutes provides that if statutory requirements are met a voluntary agreement is binding on the parties and reductions can be made only in limited circumstances. This statute requires that a copy of the agreement, with the commissioner’s approval, shall be delivered to each of the parties and thereafter it shall be binding upon both parties as an award of the commissioner. In this case the commissioner approved the voluntary agreement but it was never delivered to the parties. Accordingly the requirement set forth in §31-296 had not been met and the voluntary agreement was not binding on the parties. Therefore the city had the right to seek a reduction in the petitioner’s weekly benefits. 602. The review board properly determined that the plaintiff dependent widow of a volunteer firefighter who died in the line of duty was entitled to only 66 2/3% of the average weekly production wage pursuant to §31-306. Wannagot v. Shelton, 38 Conn. App. 754, cert. denied 235 Conn. 919-920 (1995). 102 The plaintiff dependent widow of a volunteer firefighter appealed from the decision of the CRB affirming the reduction of her survivor’s benefits. Pursuant to a voluntary agreement, benefits of $719.00 per week were initially paid to the plaintiff. This sum represented the maximum weekly compensation rate of 150% of the average production wage for the fiscal year July, 1989, through June, 1990. The commissioner issued a finding and award that the plaintiff was entitled to $319.33 per week, a sum representing 66 2/3% of the average weekly production wage for the July, 1989, through June, 1990, fiscal year. The commissioner also found that the defendant was entitled to recover the overpayment. The plaintiff’s appeal of this decision was affirmed by the review board. The Appellate Court concluded that the commissioner properly determined that the plaintiff was entitled to $319.33 representing 66 2/3% of the average weekly production wage for the fiscal year of June, 1989, through June, 1990, pursuant to §31-306. The Appellate Court found that the plaintiff incorrectly relied on Going v. Cromwell Fire District, 159 Conn. 53 (1970) for the proposition that she was entitled to 150% of the average weekly production wage pursuant to §31-309 rather than 66 2/3% of the average weekly production wage pursuant to §7-314a(b). In Going, the issues involved were (1) the proper rate of compensation where the claimant held more than one job and (2) who was liable for the payment of this compensation. Since the plaintiff in Going did not die as a result of his injuries, the provisions of §31-306, which provides for benefits equaling 66 2/3% of the average weekly production wage to dependents of a deceased worker, did not come into play. The Going decision did not support “the proposition that a dependent of a deceased worker is entitled to 150% of the average weekly production wage pursuant to the current version of §31-309 instead of the two-thirds benefit mandated by §31-306.” 38 Conn. App. at 760. In reading §§31-306, 31-309 and 7-314a(b) together, the Appellate Court concluded that the plaintiff, as a dependent of a volunteer fireman who died in the line of duty, was entitled to only 66 2/3% of the average weekly production wage. Accordingly the judgment of the review board was affirmed. 603. Work search not requirement of §31-308(a). 103 Shimko v. Ferro Corp., 40 Conn. App. 409, cert. denied 236 Conn. 916 (1996). The Appellate Court reversed the decision of the compensation review board denying plaintiff’s application for temporary partial benefits pursuant to §31-308(a), and remanded the case for further proceedings consistent with the opinion. Plaintiff, who suffered from an occupational disease where he claimed a reduced earning capacity, sought the differential between his former wages of $15 per hour and his present wages of $7 per hour, arguing that he established the diminution in his earning capacity by obtaining a lesser paying job. Despite plaintiff’s present employment status, the workers’ compensation commissioner dismissed his claim for temporary partial benefits on the ground that plaintiff failed to prove that he sought light work as a condition to receiving §31-308(a) benefits. Section 31-308(a) provides for benefits for the injured worker who is able to do some work but unable to perform his customary work. Plaintiff appealed to the compensation review board claiming that §31- 308(a) did not require job searches as a prerequisite to eligibility. The compensation review board upheld the decision of the workers compensation commissioner. Plaintiff appealed to this court. On review, the appellate court found that §31-308(a) does not mandate job searches. The court indicated that while historically commissioners employed the work search procedure as a vehicle to establish the unavailability of work, the work search procedure is not the only means of establishing this evidence. Here, the Court held that the commissioner failed to determine whether suitable work was available. Whether plaintiff could perform other work or whether he was limited to outdoor work were issues unresolved by the facts of this case. 604. A medical provider does not have the statutory authority to furnish a notice of claim required of an employee to invoke jurisdiction of the Commission. It cannot give notice on behalf of an employee, nor can it independently file a claim. Figueroa v. C and S Ball Bearing, 237 Conn. 1 (1996). 605. 120-day limit for commissioner to issue decision is mandatory time period, although it can be waived by the parties. Stewart v. Tunxis Service Center, 237 Conn. 71 (1996). 104 105 7. STATUTES OF LIMITATION 701. Suspension of statute of limitations for 15 days pursuant to statute permitted, even though sheriff failed to include attestation as to date papers were received. Veldhuis v. Fuschetto (Eagan, Magistrate) (U.S.D.C. January 23, 1995) (approved and adopted by Daly, J. March 24, 1995) 13 Conn.L.Rptr. No. 18, p. vi. A sheriff’s failure to include an attestation as to the date a writ was received for service may be cured by amendment by a party seeking to rely on the statutory 15 day extension to a limitations period if the process is delivered to the sheriff prior to the expiration of the period. 15 day extension statute is §52-593a. For a contrary holding, see Buck v. Esman, 10 Conn.L.Rptr. 413 (January 17, 1994). 702. Expert witness not necessary in legal malpractice action in certain circumstances, including cases where the lawyer lets the statute run. Little v. Matthewson, 455 S.E.2d 160 (N.C. 1995). Where a lawyer is sued for missing a statute of limitations, the North Carolina Supreme Court has held that it is not necessary to present expert testimony as to the standard of care. The court summarily affirmed the Court of Appeals’ opinion which held that in these circumstances common knowledge of laypersons is sufficient to find the standard of care. The Court of Appeals’ decision cited similar decisions from Georgia, Illinois, Louisiana, New Mexico and South Dakota. 703. Texas Supreme Court uses “open courts” constitutional provision to mandate tolling of statute of limitations for minor until majority reached. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). The Texas statute of limitations provided for a minor’s medical malpractice claim to be tolled only until the minor turned 14. The Supreme Court of Texas held this violates the state constitutional “open courts” provision. That provision provides: All courts shall be open, and every person for an injury done him ... shall have remedy by due course of law. The analysis the court used was that the statute’s invalidity arose because it cut off a minor’s right to sue before the minor legally 106 could sue on his own, thus denying the minor the right to sue all together. Connecticut’s Constitution, Article I, Section 10, reads: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. 107 8. TRIAL PRACTICE AND PROCEDURE 801. Liability of a plaintiff, who had withdrawn his claims against all defendants, cannot be considered in apportioning damages under §52-572h. Scope of release agreement properly decided by jury after verdict on liability and damages has been returned. Donner v. Kearse, 234 Conn. 660, 665-677 (1995). In a personal injury action two plaintiffs riding in the same car brought claims against defendant Anna Riccio and defendant Kelvan Kearse, a police officer employed by the Town of Windsor. Prior to trial, plaintiff Robert Donner withdrew his cause of action against all defendants. Plaintiff Lilyan Donner withdrew her cause of action against defendant Riccio as she had settled her case with this defendant for $100,000 and executed a release specifically releasing her from any claims arising from the accident. The pre-printed general release also included boiler plate language stating that Lilyan Donner similarly released from liability “any and all other persons” involved in the collision. Defendant Kearse raised a special defense that the proximate cause of the plaintiff’s injuries was the negligence of Robert Donner. The trial court granted plaintiff’s motion to strike the special defense. At trial the court did not instruct the jury that it should take into account any negligence that was attributable to Robert Donner. The court accepted the verdict which apportioned all of the damages to defendant Kearse. On appeal defendant claimed that the trial court erred by striking defendant Kearse’s special defense that the negligence of Robert Donner was a proximate cause of plaintiff’s injuries. After reviewing the legislative history of the tort reform statutes and the plain language of §52-572h and §52-102, the Supreme Court held that since Robert Donner was not a “party” or a “released person” under subsections (f) or (n) of §52-572h the trial court acted properly in striking defendant’s special defense that referred to the negligence of Robert Donner. Tort Reform II limited the universe of negligent persons to individuals who were parties to the legal action or who were specifically identified in §52-572h(n). The universe of negligent persons could have been expanded, at the option of the 108 defendant, by impleading Robert Donner as a third party. Defendant chose not to do this. The defendant also claimed on appeal that the trial court erred by bifurcating the issue of whether plaintiff Lilyan Donner’s release of Riccio from claims also released defendant Kearse from liability. Under §52-572e(b) the intent of the contracting parties to a release determines the scope of a release. It is a question of fact to be resolved by the trier of fact. The Supreme Court noted that the source of conflict on the issue arose because one statute required a jury to determine the effect of a release agreement, §52-572e(b) and another, §52- 216a, prohibited the jury from learning that a release had been executed. The Supreme Court concluded that §52-216a2 did not erect a total bar so as to prevent a jury from ever considering the terms of a release agreement as evidence, but did not agree with the defendant that this statute only affected cases in which remittiturs and additurs were involved. The Supreme Court held that the jury should not have been informed of the release prior to deciding the issues of liability and damages with respect to the defendant. Therefore the trial court acted properly in ordering the same jury, after returning a verdict on liability and damages, to consider whether the plaintiff had intended to release the defendant when she executed the release. 802. Supplemental instruction to jury on causation held sufficient where the trial court adequately reminded the jury of the cause in fact aspect of causation. Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 604-607 (1995). Wrongful death action where business invitee was murdered by a third party in the parking garage at Bloomingdale’s. Judgment for the plaintiff. On appeal the defendant claimed that the trial court erred in its instruction on proximate causation. 2 The language of §52-216a provides that the terms of a release agreement “shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors...” 234 Conn. at 674. 109 After deliberation had begun the jury asked the judge to “redefine causation as it pertains to this case”. In the original charge on causation the court defined legal cause as having two components: cause in fact and proximate cause. To determine whether cause in fact existed jurors were instructed to ask themselves “Would the injury have occurred were it not for Bloomingdale’s negligent conduct?” 234 Conn. at 609. As for the second component, the court instructed the jury that proximate cause is satisfied if the plaintiff can prove that the defendant’s negligence was a substantial factor in the resulting harm. In response to the jury’s request for a redefinition of causation the trial court reminded the jurors that the charge was to be understood as a whole. The court then repeated its definition of proximate cause as a “substantial factor” without explicitly redefining cause in fact. The Supreme Court held that although the recharge did not explicitly redefine the cause in fact test the trial court adequately reminded the jury of this issue in explaining what was necessary to find proximate cause. The court stated that when responding to a jury’s inquiry the court’s supplemental charge may be “less formal and lack the exactness of the formally prepared original charge.” 234 Conn. at 606. In a footnote the court stated that in most instances an instruction on proximate cause alone may be sufficient to guide the jury on the meaning of legal causation where a party does not specifically request an independent instruction on cause in fact. 234 Conn. at 607 n. 8. This is the approach of the Restatement (Second) of Torts. The trial court adequately instructed the jury on the necessary elements of causation. 803. Special defense that was subsequently withdrawn in underlying action not admissible in statutory subrogation action as admission of a party opponent. Home Insurance Company v. Aetna Life and Casualty Company, 235 Conn. 185, 202-206 (1995). Plaintiff insurer brought subrogation action against Barry Schuss for setting fire to a synagogue. Plaintiff obtained a judgment against Schuss and then brought a statutory subrogation against Schuss’ insurer, Aetna Life and Casualty Company. Plaintiff maintained that Schuss placed his mental condition at issue by asserting the special defense of “psychological 110 vulnerability” and “loss of a substantial ability to control himself” in its related, underlying action against Schuss. This special defense was subsequently withdrawn in said action. The trial court granted summary judgment in the statutory subrogation action against plaintiff. The Appellate Court reversed summary judgment. The Supreme Court granted certification on, inter alia, the issue whether the Appellate Court improperly concluded that there existed a genuine issue of material fact regarding the applicability of the exclusion in Aetna’s policy for property damage intentionally caused by an insured. The Supreme Court concluded that the trial court properly rejected plaintiff’s claim that Schuss’ special defense was admissible. The Supreme Court held that Schuss’ special defense was not admissible as the admission of a party opponent. Although Schuss’ judicial admission might be admissible against Home as Schuss’ subrogee, it could not be used by Home against Aetna. The Supreme Court also held that the trial court correctly found that Schuss’ deposition testimony was insufficient to defeat Aetna’s motion for summary judgment. A review of his deposition testimony revealed that he consistently and unequivocally testified that he intended to set the fire to the Emanuel Synagogue for the purpose of damaging it. The Supreme Court stated that it need not consider the issue of how an insured’s mental condition may affect the application of an insurance policy’s intentional act exclusion clause because they concluded that plaintiff had failed to adduce any evidence to establish that Schuss did not intend to cause damage to the synagogue when he set fire to it. Consequently a jury could not reasonably have concluded that Schuss’ conduct in setting the fire fell outside the exclusion contained in Aetna’s policy for intentional property damage caused by an insured. The judgment of the Appellate Court was reversed and the case remanded to that court with direction to affirm the judgment of the trial court. 804. Judgment for plaintiff reversed and remanded because medical report containing sole permanent partial disability rating of plaintiff improperly admitted since plaintiff failed to comply with §220(D) of the Practice Book. 111 Rosenberg v. Castaneda, 38 Conn. App. 628, 630-634 (1995). Plaintiff was injured in a fall on defendants’ property. Defendant claimed on appeal that even if damages were warranted the amount awarded was excessive because a medical report containing the sole evidence of permanent partial disability was improperly admitted into evidence since plaintiff failed to comply with §220(D). On appeal plaintiff argued that since the medical report was a written report rather than live testimony from an expert witness, §220(D) did not apply. Instead, plaintiff argued that §52-174(b) of the General Statutes superseded the rules of practice with regard to medical reports and therefore allowed the report to be entered as a business entry under the statute. The Appellate Court stated that there was no authority that suggested §52-174(b) was intended to exempt a party from other prerequisites of admissibility. Plaintiff also argued that the medical report was admissible because it had been disclosed as part of an offer of proof for a prejudgment remedy. The Appellate Court held that merely supplying opposing counsel with an expert’s report did not satisfy §220(D), citing Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 506-508, cert. denied 208 Conn. 812 (1983). Moreover, the Appellate Court held that since there was a complete absence of a showing of good cause the trial court abused its discretion in admitting the medical report into evidence. The plaintiff claimed there was no duty to comply with §220(D) and therefore had made no effort to establish the required good cause. The Appellate Court further concluded that without the medical report stating that plaintiff had sustained a 30% permanent partial disability of his right shoulder, there was no admissible medical evidence on which the trial court could find this disability. There was no way to determine the extent to which this disability evidence played in the award of total damages. Therefore, the case was reversed and remanded for a new trial. NOTE: See the Practice and Procedure article in this issue, which analyzes the revised §220 effective October 1, 1995. The new rule removes the 60 and 120 day time limitations and instead requires plaintiff’s disclosure of experts “within a reasonable 112 time prior to trial.” Also, the “good cause” requirement was replaced by a party’s burden to show prejudice due to a late disclosure. The Rosenberg decision is very poorly reasoned. The better rule, as set out in the Practice and Procedure article, permits the testimony, or here, the report, to the extent of prior disclosure. Defendant had the report since the PJR proceeding. There certainly is no surprise or prejudice under these circumstances. 805. Offer of judgment could not be divided between two sets of defendants where judgment entered against only one set of defendants. Bower v. D’Onfro, 38 Conn. App. 685, 701-704, cert. denied 235 Conn. 911-912 (1995). Personal injury action brought by passenger of motor vehicle against D’Onfro, the driver of the vehicle in which plaintiff was riding; Bradley Ausmus, the driver of the vehicle that hit plaintiff after she was thrown from the D’Onfro vehicle; and Lin Ausmus, the owner of the vehicle driven by Bradley Ausmus. Plaintiffs settled their claim against D’Onfro for $400,000 prior to trial and thereafter proceeded to trial before a jury against both Bradley and Lin Ausmus. The jury returned a verdict of $1 million finding Bradley Ausmus 50% negligent and D’Onfro 50% negligent. In plaintiffs’ amended offer of judgment they stated that they offered to take the judgment of the defendants in the amount of $700,000. On June 6, 1990, defendant David D’Onfro filed an offer of judgment offering to settle the claim for $400,000 without interest or costs to either party. This offer was accepted and judgment entered by the court on March 12, 1992. Plaintiffs filed a motion to compute interest on the verdict against defendants Lin Ausmus and Bradley Ausmus. Defendants objected to this motion on the grounds that plaintiffs’ amended offer of judgment was for $700,000 and was indivisible.3 The trial court overruled defendants’ objection. It reasoned that 3 In their original offer of judgment plaintiffs offer stated that defendant David D’Onfro was to pay the sum of $400,000; defendants Bradley Ausmus and Lin Ausmus were to pay the sum of $300,000; and that an offer of less than the sum of $700,000 from any defendant shall not be accepted by plaintiffs. Defendants moved to strike this offer of judgment however this motion was never heard or decided. 113 the amended offer of judgment reflected the sum of the initial figures as a total potential liability of all defendants. Also, §52-192a precluded plaintiffs from filing a second offer of judgment after the claims against D’Onfro were settled. Therefore the most equitable solution necessitated dividing the offer equally between the two sets of defendants and therefore the trial court determined that the offer of judgment against the Ausmus defendants was $350,000. Since the jury award of $500,000 against them was greater than this amount the plaintiffs were entitled to interest on the $500,000 award. The Appellate Court held that the trial court improperly applied the offer of judgment statute, §52-192a. The plaintiffs’ verdict of $500,000 against Ausmus should not have been increased by 12% annual interest on that amount. The court stated that there was no authority to divide the $700,000 between the two sets of defendants. The plaintiffs were bound by the $700,000 amended offer of judgment. The court relied on Civiello v. Owens Corning Fiberglass Corporation, 208 Conn. 82, 90 (1988), which holds that it is a judgment, not a verdict, that controls under §52-192a(b). The judgment that the plaintiffs received in the case against Ausmus must exceed $700,000 in order to satisfy §52-192a(b). The jury returned a verdict of $1,000,000 and apportioned liability, finding D’Onfro 50% negligent and Ausmus 50% negligent. The trial court then deducted the $43,346.10 in medical insurance payments from the $1 million award, divided that figure by two and rendered a judgment of $478,326.95 against Ausmus. This judgment was not in excess of the $700,000 offer of judgment nor was it in excess of the corrected judgment of $460,836.65. The judgment was reversed in part and the case remanded with direction to render a judgment of $460,836.85 without any prejudgment interest. 806. Witness’ use of term “racing” was relevant and proper since it was used to refer to speed and recklessness as alleged in the complaint rather than involvement in a contest. Bower v. D’Onfro, 38 Conn. App. 685, 706-708, cert. denied 235 Conn. 911-912 (1995). Personal injury action brought by passenger of motor vehicle against D’Onfro, the driver of the vehicle in which plaintiff was riding; Bradley Ausmus, the driver of the vehicle that hit plaintiff after she was thrown from the D’Onfro vehicle; and Lin 114 Ausmus, the owner of the vehicle driven by Bradley Ausmus. Plaintiffs settled their claim against D’Onfro for $400,000 prior to trial and thereafter proceeded to trial before a jury against both Bradley and Lin Ausmus. The jury returned a verdict of $1 million finding Bradley Ausmus 50% negligent and D’Onfro 50% negligent. Defendants claimed on appeal that a witness’ use of the term “racing” should not have been allowed over their objection that the complaint contained no allegation of racing pursuant to §14- 224. The witness testified: “I seen two cars driving very fast and both of them were weaving across the yellow line like racing sort of, you know.” The witness defined racing as “Going too fast, like I said, weaving, going like as if to pass.” 38 Conn. App. at 707. This testimony was relevant to proving both speed and recklessness. Lay opinion is admissible on such subjects. No witness testified that the cars were engaged in a contest and therefore racing under §14-224. The testimony was relevant to the complaint which alleged that the defendant Ausmus had operated his vehicle at a high rate of speed and was both negligent and reckless. The trial court properly refused to strike the witness’s use of the word racing. 115 807. The psychiatric records of defendant in underlying tort action are not discoverable in statutory subrogation action against his insurer. Home Insurance Company v. Aetna Life and Casualty Company, 235 Conn. 185, 192-202 (1995). Plaintiff insurer brought subrogation action against Barry Schuss for setting fire to a synagogue. Plaintiff obtained a judgment against Schuss and then brought a statutory subrogation against Schuss’ insurer, Aetna Life and Casualty Company. Plaintiff sought, pursuant to §52-146f(5), the psychiatric records of Schuss. Plaintiff maintained that Schuss placed his mental condition at issue by asserting the special defense of “psychological vulnerability” and “loss of a substantial ability to control himself” in its related, underlying action against Schuss. The Supreme Court granted certification. Schuss claimed that the Appellate Court incorrectly concluded that plaintiff was entitled to access his psychiatric records under §52-146f(5). The Appellate Court had found that the principle of substitution in subrogation actions served to link the action against Schuss and the subsequent subrogation action to such an extent that they could be regarded as one cause of action. The Supreme Court disagreed. Moreover, the Supreme Court stated that the claims underlying the plaintiff’s action against Schuss and its action against Aetna were completely different. The former was a common law trespass action and the latter was a statutory subrogation action involving the scope of an insurer’s liability coverage under an insurance policy. Each action involved a different defendant who was not a party to the other action. According to the Supreme Court, the plaintiff’s claim had no support in the language of §52-146f(5), the pertinent legislative history, the policy underlying the psychiatrist- patient privilege or any precedent. The Supreme Court also found that the subrogation statute, §38a- 321, did not create an exception to a psychiatric patient’s right to confidentiality under §52-146e. Moreover, the stipulation that plaintiff entered into with Schuss (that plaintiff would only seek to recover from his insurance) did not carry with it an implied covenant for Schuss not to do anything to frustrate plaintiff’s right to obtain a judgment against him on the issue of damages. There is a strong public policy in favor of the confidentiality of psychiatric communications. The 116 Supreme Court held that the plaintiff was not entitled to access Schuss’ psychiatric records. 808. Affidavits which are mere denials of allegations in complaint are insufficient basis for the granting of summary judgment. Gambardella v. Kaoud, 38 Conn. App. 355 (1995). The trial court granted defendant’s motion for summary judgment finding that plaintiff, who sustained injuries in a fall caused allegedly by a defective sidewalk, failed to allege any affirmative acts by which defendant abutting property owners would have created an unsafe condition of the sidewalk. Plaintiff appealed. The plaintiff alleged that “defendants caused and/or did allow sand, sticks and debris to accumulate on said walkway thereby covering and concealing from view the cracked surface thereof ....” The Appellate Court found this allegation to be of a positive act by the defendants, which could form the basis of defendants’ liability if proved. The defendants, in response to plaintiff’s allegations, produced affidavits which simply denied the allegations in the complaint. The Appellate Court held that these affidavits failed to provide evidence to establish the absence of a material factual dispute. The Court reversed judgment and remanded the case. 809. The trial court’s jurisdiction to open a judgment of dismissal is limited to motions filed within four months of the dismissal. Cassella v. Kleffke, 38 Conn. App. 340, cert. denied 235 Conn. 905 (1995). Irregular case history did not excuse plaintiff from moving to open her case within four months of the notification of dismissal for dormancy. On October 1990, plaintiff improperly filed her personal injury case in Bridgeport Superior Court. As the case should have been filed in New Haven, the Bridgeport court lacked venue. Nevertheless the case pended in Bridgeport, and on October 16, 1991, appeared on the Bridgeport dormancy calendar. The Court notified the plaintiff that unless the pleadings were closed by December 6, 1991, a Practice Book Section 251 dismissal would enter. On November 21, 1991, plaintiff moved for exemption from dormancy. The Court denied this request. On November 25, 1991, plaintiff moved to transfer the matter to New Haven. Prior to the granting of the motion for transfer, the Bridgeport court dismissed the case for dormancy. The plaintiff received notification of the dismissal for dormancy on December 13, 1991, and notification for the transfer of the case to 117 New Haven on December 11, 1991. The plaintiff made no effort to open the dismissal in either court until nearly seventeen months after the dismissal. On May 3, 1993, the court granted plaintiff’s motion to open the judgment of dismissal. This appeal ensued. The Appellate Court held the trial court’s jurisdiction to open a judgment is limited to motions filed within four months of the dismissal. As plaintiff’s motion was not timely, the court lacked jurisdiction to grant it. 810. Cross examination: Plaintiff is entitled to have the jury weigh the credibility of an expert witness by assessing his motives for testifying. Fact that defense expert sued for negligence “similar” to that alleged against defendants improperly excluded. Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, cert. denied 235 Conn. 922 (1995). In a medical malpractice action against a hospital and a physician, the jury returned a verdict for the defendants. Plaintiff appealed. The plaintiff claimed that the trial court erred in failing to allow her to cross-examine defendant’s expert witness with regard to a malpractice action brought against him with allegations similar to those raised against the defendants. The Appellate Court reversed the trial court, holding that the trial court improperly determined that the proffered evidence, which was clearly relevant, was unduly prejudicial. The court held that it is an abuse of discretion to refuse to permit a party to cross examine an expert medical witness in a malpractice case about an action brought against that witness making allegations of negligence “similar” to those claimed against the defendant. The Appellate Court repeated the admonition that “the exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence,” quoting Martins v. Connecticut Light and Power Company, 35 Conn. App. 212, 217, cert. denied 231 Conn. 915 (1994). Given that the excluded evidence bore on the main issue to be resolved--whether defendants deviated from the standard of care--and because plaintiff was deprived of the right to have the jury weigh the credibility of the expert witness by assessing his motives for testifying, judgment of the trial court was reversed and the case remanded. 811. Adverse inference charge should not be given even where party fails to perform testing, the results of which would likely be unfavorable to party’s cause. State v. Conn, 234 Conn. 97 (1995). 118 In a murder trial held about a year after the crime, a criminalist for the state testified that in examining the evidence he found several hairs on a t-shirt and baseball cap that were found at the crime scene. The criminalist testified that these hairs appeared to be “negro.” The state had never requested that sample hairs be taken from the defendant in order to try to effectuate a match. The defendant, outside the presence of the jury, moved that hairs be taken from his head and compared with those on the t-shirt and baseball cap. The defendant’s hairs were taken and compared to the hairs taken from the t-shirt and the cap. They did not match. The criminalist testified that even though the hairs did not match, he could not exclude the defendant because a person’s head hair may change depending on his diet and environment. He testified that the hair should have been tested within one to two months of the crime. In addition to various constitutional arguments, the defendant claimed an adverse inference charge based upon the State’s failure to find the hairs on the t-shirt and cap and thus request hairs from him in a timely fashion. The trial court refused the defendant’s request to charge and the Supreme Court affirmed. The Supreme Court reasoned that an adverse inference charge is not proper because the reasoning behind such a charge is that a party chooses not to produce available evidence because it is unfavorable to his side. In the instant case, the State did not “choose” not to produce existing evidence. The evidence was not available because the testing had not been completed. 812. Defense expert testimony excluded because sequestration order violated in providing expert with transcript of opponent’s expert’s testimony. State v. Sherman, 38 Conn. App. 371, cert. denied 235 Conn. 905 (1995). In this murder trial, the court precluded the defendant’s expert witness from giving his opinion as to the time of death because of a violation of a sequestration order. Although the expert did not enter the court room, defense counsel had provided him with a transcript of the State Medical Examiner’s trial testimony. The trial court barred the expert’s testimony as he violated the sequestration order. The Appellate Court affirmed. 119 813. Pleading notice: plaintiff who pleads notice to housing authority under §8-67 does not assume burden of proof to establish such notice. White v. Edmonds, 38 Conn. App. 175 (1995). Plaintiff sued the Stamford Housing Authority (“SHA”) seeking damages for personal injuries sustained in a fire occurring while she was a SHA tenant. She affirmatively alleged in her complaint that she had complied with the notice provisions of §8-67, which authorizes suit against a housing authority so long as notice of intention to commence such an action is provided within six months after the cause of action arose. Plaintiff apparently submitted no proof of such notice at trial. The jury returned a verdict for the plaintiff, but the trial court granted SHA’s motion to set the verdict aside on the ground that plaintiff failed to meet her burden of proof on this point. On appeal, the Appellate Court reversed. The court held that plaintiff did not assume the burden of proving notice even though she had pleaded it, because a plaintiff undertakes the obligation to prove only those facts alleged in her complaint that are “material to her cause of action.” The court, following Manning v. Michael, 188 Conn. 607, 615- 16 (1982), said that the burden rests on plaintiff only if the facts alleged “go to the essential question of liability rather than to the issue of damages or recovery.” 38 Conn. App. at 183. This is an important limitation to the time-honored Connecticut rule of “If you plead it, you must prove it.” 814. Jurisdiction: Long-arm statute. Long-arm statute requirement that cause of action arise from business solicited in state does not require that particular action arose from business solicited in the state, but was satisfied if defendant generally solicited that kind of business in the state and could reasonably foresee that it could be sued in similar case. Thomason v. Chemical Bank, 234 Conn. 281 (1995). The court construed the long-arm statute, §33-411(c), so as to sustain jurisdiction where the plaintiff’s cause of action arose from business not actually solicited within the state by the defendant, but where the defendant subsequently solicited similar types of business so as to make it, in the view of the court, reasonably foreseeable to defendant that it could be sued with respect to that kind of business. 120 815. Unavoidable accident is not a proper special defense. Bikakis v. Alcock, 15 Conn.L.Rptr. No. 5, 161 (11/6/95). Judge Freedman has held that a claim that a motor vehicle accident was unavoidable is not a proper special defense in a personal injury action. 816. Where defendant claims that plaintiff’s treating physician may have been negligent, and did not claim that plaintiff failed to use reasonable care in selecting the physician, the court’s charge on the original tortfeasor rule was proper. Gladstone v. Grinnan, Superior Court, J.D. of New Haven, no. 316424 (12/15/95) (memorandum of decision re motion to set aside verdict or for remittitur). [Full text of decision at 14 Forum 61 (Jan/Feb 1996)] The defendants made no claim on the trial that the plaintiff failed to use reasonable care in selecting a doctor. The defendants did claim that plaintiff’s treating physicians may have been negligent. In fact, the defendants argued in their memorandum in support of their motion to set aside verdict that they “did not admit that all her current maladies, and particularly her paraplegia, were caused by the accident.” The court charged: An injured party can recover from the original person causing the injuries even for damages caused by the negligence of a doctor in treating the injury which the tortfeasor caused, provided the injured party used reasonable care in selecting the physician. The court’s charge, articulating the original tortfeasor rule, was based on Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 595-596 (1975). 817. Supreme Court refuses to rule on whether a treating physician in a malpractice case can be compelled to furnish expert testimony on the standard of care. Sung v. Butterworth, 235 Conn. 400 (1995). Plaintiff sued Dr. Robert Edkin, an orthopedic surgeon, for malpractice in the manner in which he had treated an injury to her left elbow. Plaintiff called Dr. Anthony Spinella, her treating physician, and who she had given notice to the defendant that she might call as her treating physician. Because the plaintiff had not 121 disclosed to the defendant that she might rely upon Dr. Spinella as a potential expert witness, the trial court would not let Dr. Spinella testify as an expert. The Appellate Court affirmed, 35 Conn. App. 154, 160 (1994), and the Supreme Court granted certification on the following issue: Whether the issue was incorrectly framed by the Appellate Court as the failure of the plaintiff to furnish the required notice pursuant to Practice Book §220(D) when the issue was whether, under the circumstances of this case, a treating physician can be compelled to furnish expert testimony on the standard of care. 231 Conn. 940 (1994) The court refused to address this issue, stating that “[w]e are persuaded that the present record does not present us an opportunity to review, in plenary fashion, the underlying issue that the plaintiff seeks to have us consider.” 818. Trial court has no jurisdiction to accept attorney trial referee’s report that was not submitted within 120 days of conclusion of trial as required by §430A and where defendants objected to untimeliness of report. Gumpert v. Ore-Ida Foods, Inc., 39 Conn. App. 635 (1995). 819. Section 220(D) does not apply to deficiency judgment hearings. The rule applies only to trials, and a deficiency hearing is not a trial. CTB Ventures 55, Inc. v. Rubenstein, 39 Conn. App. 684 (1995), cert. denied 235 Conn. 940 (1996). §49-14(a) provides in part that at any time within 30 days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. The statute further provides that such motion “shall be placed on the short calendar for an evidentiary hearing ....” The court reasoned that the plain language of the statute called for an “evidentiary hearing.” §220(D) applies only to trials, and because that rule does not use the words “evidentiary hearing” it does not apply. It seems like a highly questionable decision. Literally millions of dollars are at stake in deficiency hearings, especially in recent days when the value of real estate has dropped so dramatically. To hold that §220(D) does not mandate disclosure of expert appraisal information prior to the deficiency hearing is ridiculous. A trial has been universally defined as a “proceeding for the determination of 122 fact or law.” Black’s Law Dictionary (5th Ed.). The distinction between trial and “evidentiary hearing” is a distinction without a difference. 820. Seasonable filing of an objection to the lateness of the trial court’s decision (filed six days after decision rendered) served to transform a voidable judgment into one that was void for lack of jurisdiction over the parties. Building Supply Corporation v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 96-104 (1996). 821. The completion date of a trial for purposes of calculating the 120 days the court has to render a decision cannot run from filing of a post-trial memorandum which had not been required by the court; which was clearly intended only for settlement discussion; and which contained no new arguments. Building Supply Corporation v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 96-104, cert. denied 236 Conn. 920 (1996). 822. In lead paint case the trial court properly instructed the jury, inter alia, that defendants were liable if the landlord had actual or constructive notice of the violation and failed to repair the condition within a reasonable time after notice of the violation. Gore v. People’s Savings Bank, 40 Conn. App. 219, 223-226 (1996). This decision is in accord with the supreme court’s decision in Gore v. People’s Savings Bank, 235 Conn. 360 (1995) which held that a violation of §§47a-8 and 47a-54f constituted negligence per se but did not impose strict liability on landlords. The supreme court concluded that because these sections did not modify the common law elements of landlord premises liability, notice was relevant to a tenant’s cause of action. 823. Trial court committed plain error by failing to instruct jury that defendants had the burden of proof on the issue of mitigation of damages. Judgment as to amount of damages set aside and a new trial ordered limited to that issue. Moura v. Pulieri, 40 Conn. App. 183, cert. denied 236 Conn. 923 (1996). 123 824. Products liability: under “sophisticated user” doctrine, manufacturer not required to provide warning to installer already possessing knowledge of common hazard Gajewski v. Pavelo, 236 Conn. 27 (1996). Jury verdict in favor of defendants in products liability action brought by plaintiff homeowners against various defendants, including product manufacturer, for injuries sustained as a result of an allegedly defective gas-fired boiler. The gas-fired boiler was installed by a licensed plumber who, at the time of the installation, cleaned the chimney, and warned plaintiffs of the necessity of having the chimney thoroughly cleaned. The product manufacturer did not warn plaintiffs directly of this fact. Plaintiffs failed to have the chimney flue cleaned, and as a result of a soot build-up, suffered carbon monoxide poisoning. Plaintiffs argued on appeal that a warning must always be provided to the end user. Unpersuaded by plaintiffs’ argument, the Supreme Court affirmed the Appellate Court’s opinion in Gajewski v. Pavelo, 36 Conn. App. 373 (1994), holding that the trial court properly instructed the jury that if it found the manufacturer had a duty to warn plaintiffs of the necessity to thoroughly clean the flue, the jury could consider the plumber’s professional knowledge and skills in its assessment of whether the manufacturer had effectively discharged its duty. Under §52-572q of the Products Liability Act a manufacturer need only warn the person best able to take precautions against the potential harm, in this case the installer; and, under the “Sophisticated User” doctrine the manufacturer need not warn an installer who already is aware of a common hazard. 124 825. Medical malpractice: no error in preclusion of expert witness where plaintiff failed to establish good cause for late disclosure; error in failing to permit amendment to complaint; error in granting summary judgment for defendant where expert testimony not required. Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, cert. denied 237 Conn. 909 (1996). Plaintiff in a wrongful death action appeals from Summary Judgment rendered in favor of defendant hospital as a result of plaintiff’s inability to produce an expert witness to testify concerning the standard of care applicable to defendant. Plaintiff claims the court erred on three grounds: (1) in denying plaintiff’s late disclosure of an expert witness; (2) in failing to allow plaintiff to amend his complaint; and (3) in granting summary judgment in favor of the defendant. On April 22, 1985, plaintiff was admitted to St. Francis Hospital for the removal of a cyst-like tumor above her right ear. During the procedure, the physician used human tissue material (Lyodura) processed and packaged by defendant to effectuate the repair. The plaintiff claims that the boxes of Lyodura bore the following warnings: “For Investigational Use Only,” “For Use In Canada Only,” and “Laboratory Sample--For testing Only.” Nineteen months following the operation, plaintiff developed CJD, a neurologic disease which ultimately resulted in her death. Plaintiff timely disclosed a doctor specializing in neurology to testify that an infectious Lyodura graft resulted in plaintiff’s death. The court, however, denied, as untimely, plaintiff’s motion to disclose an expert to testify as to hospital standards relating to the procurement and investigation of human tissue to be used in operations. Plaintiff appealed. The court reasoned that as the case had been pending almost five years before plaintiff first contacted an expert to testify to this hospital standard, the trial court did not abuse its discretion in precluding plaintiff’s expert testimony. With regard to the second issue before the court on appeal, the Appellate Court held that the allegations against the hospital as to the failure of the hospital to heed the warnings on the Lyodura box in the unamended complaint were broad enough to encompass plaintiff’s revisions. The proposed allegations did not enlarge the original specifications of negligence or inject any new facts into the case of which the defendant was unaware nor was the defendant prejudiced. Therefore, the trial court erred in failing to permit plaintiff to amend his complaint. The Appellate Court found that delay was not a factor as the trial was scheduled to begin in six months. The Court further found that the revisions would not have significantly modified the claims of negligence. The Court reasoned that the hospital knew of plaintiff’s 125 claims with regard to warnings on the Lyodura boxes through an affidavit dated March 4, 1991; a deposition taken on December 9, 1991; and, Requests for Admissions dated January 22, 1992. Additionally, the Court reasoned that even without the amendment, evidence of the warning would have been relevant to prove plaintiff’s claim of negligence in failing to investigate the source of the Lyodura tissue furnished by the hospital, and a material consideration in deciding whether in the exercise of reasonable care, the hospital should have inquired as to the source of the tissue. As the unamended complaint contained a general allegation that “the hospital had failed to exercise the care of reasonably prudent persons under the circumstances” the plaintiff left the door open to prove any acts that might reasonably tend to prove negligence in the context of the facts pleaded. As to timeliness, the Appellate Court held that the original allegations had been drafted with the expectation that an expert would testify at trial concerning applicable hospital standards with regard to procuring, storing and furnishing human tissue in operations. After the preclusion of plaintiff’s expert, it then became apparent to plaintiff the need to shift the focus of his claim to warnings as he had no other evidence to prove negligence. The Request to Revise was filed promptly after the need for it became apparent, two weeks following the denial of his expert disclosure. Following the motion to preclude expert testimony, defendant moved for summary judgment claiming that plaintiff could not prove its case against the hospital in the absence of expert testimony. “It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.” Puro v. Henry, 188 Conn. 301, 305 (1982). Plaintiff claimed that the facts of his case come within the exception to this rule. In reversing the trial court, the Appellate Court held that plaintiff’s negligence claim against the hospital does fall within the exception. Plaintiff’s claim is simply that in light of the warnings on the labeling, the hospital failed to investigate the source of the Lyodura received from the distributor. This does not present an “esoteric or uniquely medical issue” requiring expert testimony for its resolution. This issue can be resolved by the common knowledge of the jurors. 826. Voir dire: improper to attempt to obtain in advance a prospective juror’s view on the significance of a particular fact. State v. Sheets, 40 Conn. App. 328, cert. denied 237 Conn. 903 (1996). 126 827. Alter ego: jurisdiction over one defendant constitutes jurisdiction over its alter egos. Busconi v. Dighello, 39 Conn. App. 753, 765, cert. denied 236 Conn. 903 (1995). The court reasoned that since an alter ego is considered an indistinguishable entity, jurisdiction over one defendant constitutes jurisdiction over its alter ego. The court went on to hold that if an entity is an alter ego of a signatory to an arbitration agreement, then that alter ego can become obligated to respond to a monetary award of an arbitration panel. 39 Conn. App. at 766. 828. The summary enforcement of a settlement agreement. Trial court wrong to convert agreement into judgment based on Audubon Parking Associates Limited Partnership v. Barclay & Stubbs, Inc. Ballard v. Asset Recovery Management Co., 39 Conn. App. 805, cert. denied 236 Conn. 906 (1995). The trial court converted the settlement agreement reported to the court into a judgment. The Appellate Court reversed, holding that because there was a dispute over the documentation of expenses which were part of the agreement, the trial court improperly rendered judgment enforcing the settlement agreement. Based on Audubon, the Appellate Court held that a trial court has the inherent power to enforce summarily a settlement agreement as a matter of law only when the terms of the agreement are clear and unambiguous. 39 Conn. App. at 808. In the absence of definitive contract language, however, the determination of what the parties intended to encompass in their contractual commitments is a question of intention of the parties, and an inference of fact. Accordingly, because there was such an issue in this case, summary enforcement of the settlement agreement was inappropriate. 829. Chip Smith charge does not invade defendant’s constitutional right to an uncoerced jury. State v. Stevenson, 39 Conn. App. 810 (1995). The trial court gave the jury a second Chip Smith charge, based on State v. Smith, 49 Conn. 376, 386 (1881). Defendant argued that the repetition of the charge created an atmosphere of coercion that 127 threatened his defendant’s constitutional right to a fair trial, relying on State v. Lyons, 36 Conn. App. 177 (1994). Because the court had already decided in Lyons that the trial court’s repetition of a Chip Smith charge did not threaten a defendant’s constitutional right to an uncoerced jury, the claim in the present case must also fail. 39 Conn. App. at 813. In U.S. v. Burgos, 55 F.3d 933 (4th Cir. 1995) the court held that it was improper for the district court to tell a deadlocked jury to continue deliberating, but did not specifically say that both sides should reconsider their views. The court held that a judge “must incorporate a specific reminder both to jurors in the minority and those in the majority that they reconsider their positions in light of each other’s views ... failure to do so will result in reversal.” The court adopted a recommendation to this effect from the U.S. Judicial Conference. The trial judge had stated: “I’m not asking anybody to give up a firmly held belief,” but he also observed that, “it is not easy to back away from an opinion” because of “pride.” The court held that this instruction was inadequate because it failed to specify that the majority and minority positions are equally credible. Where only one or two jurors have taken a position contrary to that of the majority, the judge’s comments “could be interpreted by the jury, and the dissenting jurors in particular, as being directed at them.” 830. Trial court must conduct an inquiry whenever it is presented with allegations of jury misconduct in a criminal case, regardless of whether the inquiry is requested by counsel. Application of the rule to civil cases likely. State v. Brown, 235 Conn. 502 (1995). The jury misconduct claim was rejected by the Appellate Court, 33 Conn. App. 339 (1993). Cert was granted and a five-judge court rendered an opinion, 232 Conn. 431 (1995), and thereafter the court granted the State’s motion for en banc reargument and reconsideration. The trial court had received an anonymous note after the verdict was returned but before sentencing. The note was from a “concerned citizen” who stated that while out with friends, a friend named Dana told of being on a jury in the trial of a black man who was on trial for cashing bad checks. According to the letter, Dana reported that the jurors overheard the sheriffs betting that the defendant would be found guilty because he was a black man and from New York. Dana stated, according to the letter, that she had overheard one sheriff tell another that a Wilton detective showed one of the witnesses some pictures because “the witness couldn’t remember what the guy looked like.” 128 The trial court gave the letter to the chief sheriff, who directed a copy to the State’s Attorney. The trial court did not direct a copy to defense counsel. Defense counsel did not learn of the letter until the day of sentencing. At that time the defendant orally amended his motion for new trial to include the alleged jury misconduct. The court heard brief argument and denied the motion. The trial court failed to conduct any inquiry or hold an evidentiary hearing. The court did not agree that the trial court had to hold a hearing, but reversed on the ground that the trial court failed even to conduct any inquiry whatsoever, specifically addressing the allegations of jury misconduct contained in the letter. 235 Conn. at 521. The court reviewed the importance of jury impartiality, and its earlier decisions on alleged jury misconduct. 235 Conn. 522-525. The court exercised its inherent supervisory power over the administration of justice, and held that “henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case.” 235 Conn. at 526. The court went on to state (235 Conn. at 526): Although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto. The court specifically did not decide whether the same rule would apply to civil cases. 235 Conn. at 526 n. 27. The court reasoned that a great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. 129 It is unclear what the court would do in a civil case, although it seems incomprehensible that a similar rule would not be adopted for the substantial rights involved civil litigation. Justice Berdon, with whom Justice Katz joined, concurred but differed on the approach. 235 Conn. at 537. Their analysis is that the hearing on jury misconduct is mandated under our state constitution, rather than the court’s supervisory powers. Justice Berdon stated that this is underscored in a case such as the one before the court, where the allegations involved a jury’s possible exposure to racist remarks made by the court’s own sheriffs. 130 9. APPELLATE PRACTICE AND PROCEDURE 901. The dumbest things smart lawyers do on appeal. In a wide-ranging interview by Stuart Taylor, Jr. published in the October, 1995 American Lawyer, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit was asked: QUESTION: In a published lecture entitled “The Wrong Stuff,” you advised on various ways in which lawyers can try to put their worst foot forward in appellate litigation. In this regard, what is the dumbest things that you can see smart lawyers do? ANSWER: Bend the truth. It is very easy when you’re an advocate to overstate things, or to overcite cases, or to stretch the record. And very often, people don’t do a reality check, don’t go back and look at their briefs, or look at their arguments, or sit and think before they make an oral argument and ask themselves the hard question: “Is this a fair way of describing what happened?” And the reason this is a particularly dumb thing to do isn’t so much because you might mislead the court, which is possible, but not likely. We do check up on these things. It’s dumb because you only need one thing like that to get judges really skeptical of everything else you say from then on in. Not just in this case, but in every other case. Maybe for years. I view the process of litigation as a cooperative, collaborative process between the court and the lawyers. I have my job to do, and they have their job to do. They have to represent their clients. But I have to be able to rely on their arguments, and have it pretty clear where the facts end and where advocacy starts. If that holds true, I can kind of move along with the briefs and make a judgment. I don’t have to go behind a brief, or look at it skeptically, or try to roll it around in my mind, and wonder why they’re phrasing it this way. Is there some hidden negative pregnant that I’m not catching here? And with most lawyers, the presumption is that when something is said in a brief, it will be the truth, not 131 just arguably the truth, but the truth, and that where argument starts, it will be labeled as argument. I think lawyers often don’t realize how important it is for me to have that level of confidence in what they say to me. Lawyers so often think that they can get away with cutting a corner here, or shading the truth a little bit there, and it won’t come back to haunt them. But it always does. 902. Appellate Court cannot review the denial of a motion for articulation filed with the Workers’ Compensation Review Board. Reising v. General Dynamics Corporation/Electric Boat Division, 38 Conn. App. 637 (1995). Defendant filed a motion for articulation with the Workers’ Compensation Review Board. The board denied the motion. The defendant’s motion for review of the board’s decision was dismissed by the Appellate Court on the basis that §4054 of the Practice Book does not provide a mechanism by which the court can review a denial or dismissal of a motion for articulation filed with the board. The board acts not as a trial court but as an Appellate Court in workers’ compensation appeals. The court reasoned that §4054, which deals with motions for review, limited their review to actions of a “trial judge.” Therefore they could not review actions of the board. 903. Appellate review limited due to the plaintiff’s failure to provide adequate record on issue of proximate causation. No reference to transcript in brief, and inadequate transcript filed. Esposito v. Schiff, 38 Conn. App. 726 (1995). In a medical malpractice action the trial court instructed the jury not to consider plaintiff’s allegation that the defendant failed to inform the plaintiff that he did not secure and remove all of the kidney stones. On appeal, plaintiff claimed that the trial court erred by directing the jury not to consider the allegation of failure to inform because the court found that there was insufficient evidence of an injury, i.e., emotional distress. 132 At trial, the trial court stated: “I don’t see in the record the evidence of injury that flowed from a failure to tell of the stones.” 38 Conn. App. at 728 (emphasis added). The Appellate Court found that the plaintiff failed to comply with the requirements of §4065(c) which provides that the appellant shall include a statement of the nature of proceedings and facts of the case in his or her brief. There were no references to any transcripts in the plaintiff’s statement of facts. The only transcripts filed by the plaintiff were the plaintiff’s testimony, the charging conference, the jury charge and the argument on the motion to set aside the verdict. The Appellate Court reviewed plaintiff’s claim limited to the reason the trial judge gave for instructing the jury not to consider the allegation of the failure to inform. The Appellate Court relied on Supreme Court decisions interpreting the word “flow” to mean proximate cause. The Appellate Court found that the plaintiff did not provide it with a record of any evidence of proximate cause on the issue raised on appeal to contradict the trial court’s ruling. It was the duty of the appellant to provide an adequate record. 904. Appealability: Since compensation review board’s remand to the commissioner required proceedings that were merely ministerial there was a final judgment from which an appeal could be taken. Wannagot v. Shelton, 38 Conn. App. 754, 755-757, cert. denied 235 Conn. 919-920 (1995). The plaintiff dependent widow of a volunteer firefighter appealed to the Appellate Court from the decision of the Workers’ Compensation Review Board affirming the reduction of survivor’s benefits and her duty to reimburse the city for the overpayment. The commissioner’s finding and award provided for “a hearing, at the request of any party, to decide how the reimbursement for the overpayment shall be made.” 38 Conn. App. at 756. The CRB remand specified that at future proceedings the commissioner would be limited to determining the plaintiff’s repayment schedule to the city for the overpayment she received. The Appellate Court requested the parties to address, at oral argument, the jurisdictional question of whether the appeal was properly before them as a final judgment. The test for determining whether the commissioner’s decision was a final 133 judgment turned on the scope of the proceedings on remand: “‘If such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.’” 38 Conn. App. at 756, quoting Szudora v. Fairfield, 214 Conn. 552, 556 (1990). The Appellate Court found that the scope of the proceedings would be ministerial because the taking of new evidence would not be necessary. “The commissioner would not be able to modify the underlying decision that the plaintiff had been overpaid.” 38 Conn. App. at 756. On remand the commissioner could merely create a repayment schedule. Accordingly, the decision of the commissioner was a final judgment. 905. Appealability: No appeal can be taken from the denial of a motion to strike the original complaint where an amended complaint is filed and answered by defendant without moving to strike. Wilson v. Hyrniewicz, 38 Conn. App. 715, 717-719, cert. denied 235 Conn. 918 (1995). 906. No final judgment where judgment had not entered on second count of plaintiff’s complaint even though second count was withdrawn by plaintiff during the pendency of the appeal. Annecharico v. Patterson, 38 Conn. App. 338 (1995). A trial court’s failure to render judgment on a count of plaintiff’s complaint results in lack of a final judgment for purposes of appeal even though such count was withdrawn during the pendency of the appeal. The jury found for the defendants on the first count in this wrongful death action. The court accepted the verdict and rendered partial judgment thereon. The plaintiff moved to set aside the verdict and for a new trial. The court denied this motion, and plaintiff appealed. When plaintiff realized that no judgment had been rendered on the second count of the complaint, he withdrew this count during the pendency of the appeal. The Appellate Court held that the withdrawal of the second count during the pendency of the appeal did not confer jurisdiction. Appeal dismissed. 907. General verdict rule: The mere submission of interrogatories to the jury will not preclude the general 134 verdict rule. Interrogatories must be properly framed to disclose the grounds for the jury’s decision. Fabrizio v. Glaser, 38 Conn. App. 458, cert. granted 235 Conn. 916 (1995), affirmed, 237 Conn. 25 (1996). In a dental malpractice action, plaintiff alleged that defendant dentist failed to obtain informed consent before extracting plaintiff’s wisdom teeth. The jury rendered a verdict for the defendant from which plaintiff appealed. Plaintiff asserted that the trial court improperly denied his motion for a directed verdict and his motion to set aside the verdict. On appeal defendant argued that the general verdict rule applied to this case, therefore precluding appellate review of plaintiff’s claim. The Appellate Court, in agreeing with the defendant, affirmed the judgment of the trial court. The plaintiff submitted two interrogatories to the jury which addressed defendant’s special defenses on the statute of limitations. The plaintiff argued that because interrogatories were posed to the jury, the general verdict rule did not apply. Defendant argued that as the interrogatories posed did not determine the grounds for the verdict, the general verdict rule should have been applied. The plaintiff’s interrogatories were not framed so as to elicit responses which would enable the court to determine the grounds for the jury’s decision. Therefore, the general verdict rule applied. The Supreme Court has granted certification on the following issue (235 Conn. 916): Did the Appellate Court properly apply the general verdict rule under the circumstances of this case? The Supreme Court answered the question with an emphatic yes. The court stated that it was persuaded that the Appellate Court “properly upheld the applicability of the general verdict rule under the circumstances of this case ... because the issue is fully addressed in the thoughtful and comprehensive opinion of the Appellate Court, it would serve no useful purpose for us to elaborate further on the discussion therein contained.” 237 Conn. at 27. 908. The trial court must attempt to harmonize answers to interrogatories that are inconsistent. Bilodeau v. City of Bridgeport, 38 Conn. App. 447, cert. denied 235 Conn. 906 (1995). Plaintiff brought this action sounding a nuisance for injuries received when a tree branch fell on her car while driving on a city road. The jury found five of the six elements required to prove 135 nuisance in favor of the plaintiff and awarded $50,000. The trial court accepted the answers to interrogatories but declined to accept the plaintiff’s verdict. The court, without further instruction, ordered that the jury direct their verdict in favor of the defendant as their finding that the use of the land was not unreasonable necessitated a verdict for the defendant. Plaintiff appealed. The plaintiff argued that the court should not have directed a verdict in favor of the defendant, but instead should have invalidated the entire proceeding or sent the jury back for further deliberation after a recharge on the law. The Appellate Court agreed. The trial court did not expressly instruct the jury that they had to answer each of the interrogatories in favor of the plaintiff before they could render a verdict in favor of the plaintiff. Judgment reversed and the case remanded for a new trial. 909. Mootness: Capable of repetition yet evading review exception to mootness doctrine clarified. Loisel v. Rowe, 233 Conn. 370 (1995). Chief Justice Peters, writing for the majority, holds that three factors are necessary for the application of the capable of repetition, yet evading review doctrine: 1. The challenged action, or its effect, must be of such limited duration that there is a strong likelihood that the substantial majority of cases raising a question about its vitality will become moot before appellate litigation can be concluded; 2. There must be a reasonable likelihood that the question presented in the pending case will arise in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate; and 3. The question must have some public importance. The court found in Loisel that the second and third requirements were met - that the question is of public importance and is likely to recur. It found the appeal moot, however, because the parties failed to establish a strong likelihood that the substantial majority of cases challenging the action in question would become moot before they could be reviewed. 233 Conn. at 382-383. Justice Katz, with Justice Berdon dissented (233 Conn. at 388 ff). Justice Katz’ dissent was characterized by the Law Tribune (24 CLT 24, p. 6)(6/12/95) as “passionate.” She stated that the majority applied the doctrine too narrowly, particularly in a case that “involves a public concern of the highest order: the ability of individuals to 136 receive the most rudimentary levels of assistance.” She favored a weighing of the different factors. 910. Per curiam decision practice of Connecticut’s Appellate Court, and other intermediate appellate courts, attacked as “justice of impaired quality.” Weiss, What Price Per Curiam?, 39 Trial Lawyers Guide 23 (1995). The article begins: The per curiam disposition is a frequent technique used by Appellate Courts. In its proper place, it serves a legitimate purpose as a tool in the appellate arsenal. But it can also be an evasive, if not an abusive device, particularly if not accompanied by a statement of the reasons for the court’s decision. The author, Tobias Weiss, is a member of the Connecticut bar. He finds no problem with a per curiam decision that sets out an analysis of the issue and the reasons for the court’s decision. He takes issue, however, with the practice of “there is no error” or “the judgment is affirmed” decisions, a practice adopted by our Appellate Court in recent years. Whereas the Connecticut Supreme Court “writes an opinion in every case,” even in those circumstances where a per curiam opinion issues, the court nonetheless makes a brief statement of the issue and its reliance on the reasons given by a lower court, whether the Appellate Court or the trial court, in a standardized core formulation. The Connecticut Appellate Court, however, has made use of the “one word decision,” a practice which has been widely criticized. 39 Trial Lawyers Guide at 27. The author’s analysis is that the decision of cases without indicating any supporting reasons or basis, as in the one-word or one-line decisions, is not conducive to a well-functioning judiciary and does not discharge its obligations. Most important, “it is not compatible with a democratic system of government.” Id. at 30. The author uses the label “ukase” to describe such opinions. Webster defines “ukase” as “an edict of the czar” or as “any order by an absolute or arbitrary authority.” He concludes that: What price per curiam? As to the ukase per curiam, it is justice of impaired quality, and a loss of respect for and confidence in the courts, with a possible reaction outside the court system. Id. at 36. 137 911. Articulation: the denial of multiple motions for articulation (three) where no motion for review was filed precludes review of a later motion for articulation. Viets v. Viets, 39 Conn. App. 610 (1995). Plaintiff filed a motion for articulation March 9 which was denied March 20, 1995. She filed a second motion for articulation May 17 which was denied May 25, 1995. Her third motion was filed on June 6 and denied on June 9, 1995. None of these motions were the subject of a motion for review, and all had to do with alleged ambiguities and deficiencies in the trial court’s decision which were “all apparent at the time the court’s decision was rendered.” 39 Conn. App. at 614. The court, in an unusual published decision on a motion for review, held that the failure to file motions for review from the first three motions for articulation under the circumstances precluded the granting of the relief requested in the fourth motion for review. The court specifically noted, 39 Conn. App. at 613 n. 5, that where the trial court’s original articulation is still not adequate for appellate review, it would be appropriate to file a motion for further articulation. The moral is that if the court refuses to articulate to preserve the issue a motion for review must be filed immediately. 912. Appeal time runs from the issuance of notice of the decision. Workers’ compensation appeal remanded by the Appellate Court to the CRB for a finding as to when issuance of notice occurred. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717 (1995). Following Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994) the court held that to determine whether an appeal is untimely a determination must be made as to the date of the issuance of notice of the decision. Here, the commissioner’s decision was dated 11 days prior to the date plaintiff filed her appeal, but there was no finding that notice of decision issued on the same day as the date of the decision. 913. Plain error review: failure to charge on statutory presumption of family car use and general authority pursuant to §52-182 was plain error. 138 Dionne v. Markie, 38 Conn. App. 852 (1995). Personal injury action where trial court failed to charge jury on the statutory presumption, §52-182, that defendant, the son of the owner, was operating the motor vehicle within the scope of his father’s authority. The car driven by defendant was owned by his father, Paul Markie, doing business as Markie Motors, and T.K. Sales, Inc. The trial court instructed the jury on the family car doctrine but failed to instruct on the statutory presumption. Instead, the jury was instructed that the burden was on the plaintiff to prove all elements of the family car doctrine. Even though plaintiff did not object to this instruction the court’s failure to charge on the language of §52-182 required plain error review because the court failed to comply with the express statutory language of §52-182. The court allocated the burden of proving that the defendant was acting under the general authority of his father and his father’s company, to the plaintiff without the benefit of the statutory presumption. Under §52-182 the plaintiff was entitled to a presumption on the issue of general authority upon proving that defendant was the son of the owner of the car. Judgment was reversed and the case remanded for a new trial. 914. Appealability: sanctions order for bad faith pleading a final appealable judgment. Trial court has no jurisdiction to vacate an order of sanctions where no motion to vacate or to set aside the order was filed within four months of its issuance. Decision encourages piece-meal appeals and creates a bizarre appellate scenario. CFM of Connecticut v. Taufiqul Chowdhury, 38 Conn. App. 745, cert. granted in part 235 Conn. 933 (1995). Defendant moved for sanctions against the plaintiff and its attorney for bad faith pleading. The plaintiff’s attorney neither complied with nor appealed the August 31, 1990 sanctions order. The defendant then moved the trial court to find plaintiff’s attorney in contempt of court. On March 18, 1993, a trial court vacated the earlier trial court’s order after finding that no hearing had been held in support of the defendant’s motion for sanctions pursuant to Fattibene v. Kealey, 18 Conn. App. 344 (1989). 139 Defendant cross appealed on the basis that the trial court’s initial order regarding sanctions was a final judgment. The Appellate Court concluded that this order was a final judgment pursuant to the test set forth in State v. Curcio, 191 Conn. 27, 31 (1983). The Appellate Court held that the applicable four month period set out in §52-212a and Practice Book §326 had run and that the parties had not filed a motion to open or set aside within that time period. Nor had either party appealed the validity of the order. Therefore the trial court was without jurisdiction to vacate the previously imposed sanctions order. Accordingly the portion of the judgment vacating the initial order was reversed. The attorney was not a party in the action. Nonetheless he had been ordered to pay $10,000 attorney’s fees along with the defendant. After the sanctions order issued the Appellate Court noted that no further “trial court proceedings were anticipated that would eradicate the plaintiff and (the attorney’s) obligation to pay the $10,000.” The Appellate Court interpreted the order as a final judgment. The moral is that where sanctions are ordered against an attorney, the judgment is final. Since the attorney is not a party in such circumstance, it would appear that a writ of error rather than an appeal would be the appropriate vehicle for appellate review. Bergeron v. Mackler, 225 Conn. 391 (1993)(writ of error lies from improper disqualification of a lawyer for a witness). If sanctions are ordered against a party, an appeal or notice of intention to appeal authorized by §4002 must be filed. If an appeal is filed, it goes to the Appellate Court, but the lawyer’s writ of error must go to the Supreme Court. If the party files a notice of intent to appeal, the lawyer nonetheless must file a writ of error, as §4002 only applies to appellate rights of parties, not their counsel. A bizarre scenario, to say the least. Every time counsel fees are ordered in a discovery dispute a final judgment is rendered. These orders now are routinely ignored on the basis that they do not become final until judgment enters. The decision seems to encourage piece-meal appeals and writs of error, which will surely come from the attorneys because a final sanctions order must be reported to the attorney’s malpractice insurance carrier. If ignored it could cause cancellation of insurance or even the inability to obtain malpractice insurance. 915. Seven day time limit to take appeal under §49-35c(b) inapplicable where the basis of the appeal was the discharge of a mechanics lien during a trial on the merits rather than on a pretrial application or motion. The seven day time limit applies only to orders entered pursuant to §49-35b which refers to hearings held on the application or motions set forth in §49-35a to determine the validity of a mechanics lien prior to the trial of a foreclosure action. 140 New England Savings Bank v. Metal Lakes Realty Co., 235 Conn. 663 (1996). 916. Appellate court may dismiss an appeal where appellant is in contempt of the orders of the trial court. Mark v. Mark, 40 Conn. App. 171 (1996). Defendant had challenged the original alimony order, which was upheld on appeal. He filed the present appeal from the denial of a motion for modification of the alimony order and filed an amended appeal from contempt orders. Defendant had been found in willful contempt three times and had paid the purge amount for each contempt or the amount set by the trial court. The appellate court found that he had continued his pattern of willfully failing to pay the alimony award. In Broderick v. Broderick, 20 Conn. App. 146 (1989) the defendant was found in contempt by the trial court and was found to owe $7,000.50 in alimony and child support and had been found in contempt five times and consistently made the demanded payments after contempt finding. In the Broderick case the appellate court did not dismiss the appeal. However that decision is distinguishable from this case because the amount of support orders had not been upheld on appeal as they had been in this case. In this case, defendant already had an appellate determination “upholding the alimony award and has nevertheless persisted in abusing the judicial system to avoid payment of court ordered support until he is threatened with incarceration or is actually incarcerated.” 40 Conn. App. at 178. Accordingly, the appellate court granted plaintiff’s motion to dismiss the defendant’s appeal as amended. 141 917. Sanctions imposed for failure of counsel to appear at preargument conference. Feuerman v. Feuerman, 39 Conn. App. 775 (1995). Defendant’s counsel failed to appear at the preargument conference, and failed to return any of the judge’s telephone calls. The opposing party moved to dismiss and for sanctions. The court denied the motion to dismiss, but imposed sanctions of $750 based on counsel’s affidavit in support of the request for counsel fees. Although §4103 provides for sanctions under §4184 for failure to attend a preargument conference, the court quoted extensively from In Re Presnick, 19 Conn. App. 340, 347 (1989), noting that there are three possible sources of the authority of courts to sanction counsel and pro se parties, including its inherent power, statutory power, and the power conferred by published rules of the court. 918. Standard of review in defamation cases. Abdelsayed v. Narumanchi, 39 Conn. App. 778, 781-782 (1995). The court cited Woodcock v. Journal Publishing Co., 230 Conn. 525, 535 (1994), cert. denied 115 S.Ct. 1098 (1995). The court noted it had a constitutional responsibility to make an independent review of the record to make sure that there was no forbidden intrusion on the right of free speech. It stated that there is no doubt that a trial court finding of actual malice in a defamation case requires an appellate court to conduct an independent review of the record and to draw its own conclusion as to whether actual malice has been proved by clear and convincing evidence. 919. Appeals which are a valiant but futile effort to retry the case in the Appellate Court will not be successful. Devincentis v. Devincentis, 39 Conn. App. 931 (1995). Citing Byrne v. Trice, 170 Conn. 442 (1976) the Appellate Court held that the “appeal can best be categorized as valiant but futile effort to retry the case in this court.” It refused to discuss any of the defendant’s claim, and cited Byrne v. Trice, supra. In Byrne the Supreme Court stated (170 Conn. at 442-443): Counsel for the named plaintiff on the appeal was not trial counsel and the appeal can best be categorized as a valiant but futile effort to retry the case in this court, pressings claims never presented to the trial court, claims 142 of error in rulings to which no objection was raised at the trial and claims of error in the court’s charge to which no exceptions were taken and as to which no requests to charge were filed. No novel principles of law or appellate procedure are involved and to discuss seriatim the plaintiff’s numerous groundless claims of error would serve no good purpose. 920. Rectification of a transcript pursuant to §4051 without affording the opposing party an evidentiary hearing not a violation of due process. State v. Lopez, 235 Conn. 487 (1995). The court, prior to several of the recesses taken during the course of the trial, instructed the jurors with regard to discussing the case, either among themselves or with others, before the evidence was concluded, final arguments heard, and the jury charge given. Initial transcript of the court’s instruction prior to the first recess in the trial instructed the jury that they must never discuss the case “with anyone, only among yourselves, only among yourselves during the breaks, during the lunch hour in the morning, but not with anyone at home or your neighbors.” The correction inserted the word “not” before “only,” so it read that the jury must never “discuss the case with anyone, not only among yourselves during the breaks,” etc. The court held that so long as the trial court provides the opposing party an opportunity to respond to the motion, the trial court is free to rule at any appropriate time. The rule, §4051, which governs transcript rectification, does not require hearing. In 1985 the hearing requirement was deleted. The court construed the 1985 deletion of the hearing requirement as vesting discretion in the trial court to determine whether to hold an evidentiary hearing before correcting the transcript. 235 Conn. at 495. Justice Berdon, in a persuasive dissent, noted that it is fundamental, under both federal and state constitutional due process clauses, that a party whose rights are being affected has a right to be heard, and an opportunity to be heard must be granted “at a meaningful time and in a meaningful manner.” 235 Conn. at 498. Justice Berdon would hold that due process and fundamental justice required a hearing, which would have given the defendant an opportunity to examine the court reporter, who refused to talk to his counsel, and have another court reporter examine the stenographic notes. 143 921. Appellate Court shortens time for oral argument to 20 minutes. Beginning with the Appellate Court’s Seventh Term (April/May 1996) the coverage page of its assignment list states: The time for oral argument in any case is limited to twenty minutes for each side. See Practice Book §4108. Section 4108 reads in part: The time occupied in the argument of any case shall not exceed one half hour on each side, without special leave of the court, granted before the argument begins. ... The court may terminate the argument whenever in its judgment further argument is unnecessary. It’s a stretch to interpret this rule as authorizing summary reduction in the time for oral argument. As a practical matter there isn’t much counsel can do about it, and in any event most cases can be argued in less than 20 minutes. Inquiry was made to the Chief Clerk as to how the court got 20 minutes in “any case” out of the language in the rule. The clerk’s office advised that the inquiry had been communicated to the court, but no response has been received. It may be that the 20-minute time limit is appropriate, given the extraordinary volume of cases the Appellate Court hears. Nevertheless, we think publishing an announcement on the face of the assignment list is a lousy way to make rules. 922. Video appeals planned for Second Circuit. The March 1996 issue of Trial Magazine (p. 82) reports that the U.S. Court of Appeals for the Second Circuit, based in New York City, will soon implement a two-way video system allowing lawyers in upstate New York and in Connecticut to argue appeals to judges sitting in Manhattan. A demonstration of the video system was held December 20, 1995 in the U.S. Courthouse at Foley Square in Manhattan. According to George Lang, III, clerk of the Second Circuit, the judges were so impressed with the system that they unanimously approved the pilot project that is expected to become operational very soon. 923. Mootness: Issue of whether a party may institute and maintain an action against an unidentified person under a 144 fictitious name does not fall within the exception to the mootness doctrine. Ayala v. Smith, 236 Conn. 89 (1996) Plaintiff, who sustained injuries as a result of a motor vehicle collision, attempted to commence an action against various defendants including the unknown driver who fled the scene on foot leaving behind the rental car which he was operating. Plaintiff identified the unknown driver in the writ as “John Doe” and attempted to effectuate service upon him by delivering a copy of the writ, summons, and complaint to the commissioner of motor vehicles pursuant to Connecticut General Statute §52-63 (providing for service upon a motor vehicle operator or owner not found at his recorded address and whose whereabouts are unknown at the time of service) and by leaving a copy at the last known address of the person to whom the rental car was leased. A Motion to Dismiss was filed on behalf of John Doe on the basis of lack of personal jurisdiction. The grounds being that (1) the rules of practice do not permit a plaintiff to proceed against an unknown defendant, and (2) service of process was not properly effectuated against Doe. The trial court granted the Motion to Dismiss and plaintiff appealed. On appeal, plaintiff argued for the court to adopt a rule permitting a party to institute and maintain an action against an unidentified person under a fictitious name, for a “reasonable time period” within which to attempt to learn the person’s identity. Plaintiff also argued that service was properly effectuated. The Appellate Court, however, never reached these issues as they become moot during the pendency of the appeal thereby divesting the court of its jurisdiction. During oral argument, plaintiff conceded that “reasonable time period” within which to discover Doe’s true identity had already passed. He further conceded that he had recently settled with his uninsured motorist carrier and could therefore not recover from Doe even if his identity were later discovered. Although the issues were no longer ripe in the instant case, plaintiff attempted to have the court address them under the “capable of repetition, yet evading review” exception to the mootness doctrine arguing that they were likely to recur in similar cases where the alleged tortfeasor is unknown and unidentified. The court rejected plaintiff’s argument holding that plaintiff met only two of three prongs necessary to satisfy the “capable of repetition, yet evading review” exception. While the court found that there was a reasonable likelihood that the issues would rise again in the future and would effect a reasonably identifiable group for whom the plaintiff could be said to be a surrogate (i.e., persons injured by unidentifiable operators of motor vehicles), and that the issues were of public 145 importance thereby satisfying the second and third prongs of the exception, they did not satisfy the first. The court reasoned that the first prong requires that the issues must be of such limited duration that there is a strong likelihood that they will become moot in the vast majority of cases before reaching appellate review. The Appellate Court determined that the plaintiff’s claims against John Doe for lack of personal jurisdiction are not an action of inherently limited duration and could arise again in a case where the plaintiff will not have had reasonable time within which to attempt to learn the unknown driver’s identity, and in which the plaintiff’s claims for damages will not have been otherwise satisfied. 924. The standard of review for error in charge. State v. Denby, 235 Conn. 477, 484-485 (1995). Justice Berdon set out the standard of review for assessing errors in the charge: When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. ... [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. (citations and quotation marks omitted). See also State v. Leroy, 232 Conn. 1, 8 (1995). 925. Standard of review for summary judgment. Busconi v. Dighello, 39 Conn. App. 753, 761-762 (1995), cert. denied 236 Conn. 903 (1996). Judge DuPont sets out the standard: Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This is provided in §384 of the Practice Book. She stated (39 Conn. App. at 762): The trial court must view the evidence in the light most favorable to the nonmoving party ... Although the party seeking summary judgment has the burden of showing the 146 nonexistence of any material fact ... it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. ... The mere presence of an adverse claim will not in itself defeat the motion. (citations and quotation marks omitted). The case also stands for the proposition that a mere denial in an answer does not create an issue of material fact. 39 Conn. App. at 771. 926. Mootness: A challenge to the issuance of an injunction authorizing the administration of a nonconsensual blood transfusion will virtually always become moot long before appellate litigation can be concluded. There was a reasonable likelihood that the question presented would recur. Review was not moot. Stamford Hospital v. Vega, 236 Conn. 646 (1996). The court held that the case met all the requirements of the standard of being capable of repetition, yet evading review. A challenge to the issuance of the injunction authorizing the nonconsensual blood transfusion will virtually always become moot long before the appellate litigation can be concluded. There was a reasonable likelihood that the question presented would recur, and that it would affect an identifiable group for whom the defendant was an appropriate surrogate to bring the appeal. The issues clearly were of public importance. Accordingly, the capable of repetition yet evading review standard was met. 236 Conn. at 653-655. 147 10. DAMAGES 1001. A heightened standard of proof is not required in determining whether a third party’s intentional act was within the scope of the risk created by the defendant. Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 607-609 (1995). In this wrongful death action where plaintiff was murdered by a third party in defendant’s Bloomingdale parking garage the jury rendered a verdict for plaintiff. Defendant claimed on appeal that the trial court improperly instructed the jury on the burden of proof regarding superseding causation. Relying on the Doe v. Manheimer decision, 212 Conn. 748 (1989), defendant claimed that the trial court should have instructed the jury that the plaintiff had to prove that the intentional act of the third party was within the scope of the risk caused by defendant’s negligence “to a fairly strong degree of certainty.” In the Manheimer decision, the Supreme Court stated “that the application of §442B of the Restatement ‘requires a fairly strong degree of certainty that a criminal or intentional intervening act is within the “scope of risk” of a negligent actor’s conduct.’” 234 Conn. at 597 quoting Doe v. Manheimer, supra, 212 Conn. at 767. The Supreme Court held that they did not mean to imply in Manheimer that there is a higher secondary standard of proof required for §442B. There is only one civil common law standard of proof for the recovery of damages in negligence which is a fair preponderance of the evidence. A heightened burden of proof is not required by the Restatement. 1002. Jury was properly instructed not to consider nature of crime committed by third party when determining liability of defendant. The test for liability under §442B of the Restatement is whether the intentional conduct of the third party fell within the “scope of the risk”: the harm actually suffered must be of the same general type as that which makes the defendant’s conduct negligent in the first place. 148 Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 609-610 (1995). In this wrongful death action where plaintiff was murdered by a third party in defendant’s Bloomingdale parking garage the jury rendered a verdict for plaintiff. Defendant claimed on appeal that the trial court improperly responded to the jury’s inquiry whether the nature of the crime should be considered when determining causation. During deliberations the jury asked: “Do we...consider the nature of a crime when determining causation?” The trial court answered “no” and instructed the jury that “liability was not contingent upon the actual type, extent or severity of the criminal activity.” 234 Conn. at 609. The jury was to consider the general nature of the harm in determining the scope of the risk in applying the rule of §442B of the Restatement. Defendant claimed that this question should have been answered “yes” because no similar crime had previously been committed within the garage. The Supreme Court held that the trial court’s answer properly stated the law. In Doe v. Manheimer, 212 Conn. 748 (1989) the rule of the “scope of the risk” is clearly stated: the harm actually suffered must be of the same general type as that which makes the defendant’s conduct negligent in the first instance. If defendant’s conduct is a “substantial factor in bringing about harm to another person the fact that the defendant neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent it from being liable.” 234 Conn. at 610 quoting Merhi v. Becker, 164 Conn. 516, 521 (1973). 1003. Section 52-225b, as amended, retroactively applied. Settlement not deducted as collateral source. Collateral source reductions applied to total award, not to a proportionate share. Bower v. D’Onfro, 38 Conn. App. 685, 696-701, cert. denied 235 Conn. 911 (1995). Personal injury action brought by passenger of motor vehicle against D’Onfro, the driver of the vehicle in which plaintiff was riding; Bradley Ausmus, the driver of the vehicle that hit plaintiff after she was thrown from the D’Onfro vehicle; and Lin 149 Ausmus, the owner of the vehicle driven by Bradley Ausmus. Plaintiffs settled their claim against D’Onfro for $400,000.00 prior to trial and thereafter proceeded to trial before a jury against both Bradley and Lin Ausmus. The jury returned a verdict of $1 million finding Bradley Ausmus 50% negligent and D’Onfro 50% negligent. Defendant claimed on appeal that the $400,000.00 settlement that plaintiffs received from D’Onfro was (1) a collateral source payment that must be deducted from plaintiffs’ recovery and (2) that the collateral source setoffs should be deducted from their (defendants Ausmus) percentage of the award rather than the whole award. (1) The Appellate Court held that §52-225b, as amended in 1987, excluded amounts received as a settlement from the definition of a collateral source. As this section was amended to clarify an existing statute it should be applied retroactively. (2) Collateral source reductions must be applied to damages awarded to compensate the claimant pursuant to §52-225a. The term “award” refers to a claimant’s total loss as opposed to liability assessed against any particular defendant. The collateral source reduction in this case therefore should be applied against the total damages found by the jury necessary to compensate the plaintiff. The court agreed with defendants that the trial court improperly upheld the jury award of $100,000.00 for past economic damages where the actual amount spent or owed that was proven and conceded by both parties was $65,019.40. The entire jury award therefore should have been reduced to $965,019.40. 1004. Prejudgment interest not allowed as element of award under Connecticut Antitrust Act. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 36-44 (1995). Plaintiff taxi service brought action against the defendant transit district, a government subsidized transit authority, for violation of the Connecticut Antitrust Act, §35-24, et seq. Plaintiff sought treble damages, attorney’s fees and costs. The trial court found that defendant had engaged in monopolistic practices and awarded damages to plaintiff for lost profits, the value of the plaintiff’s business and prejudgment interest. The 150 trial court then trebled the total damage award. The Supreme Court affirmed the trial court’s judgment except as it pertained to the award of prejudgment interest. Defendant claimed on appeal that the trial court improperly awarded prejudgment interest to the plaintiff. This claim was made for the first time on appeal. Nevertheless the Supreme Court reviewed this issue under the plain error standard because the statutory scheme of the Antitrust Act did not permit an award of interest; neither party was prejudiced by the review; and the interpretation of the statute did not require further factfinding. Moreover, the Supreme Court found that it would be unjust to compensate the plaintiff for delay that was apparently due to plaintiff’s failure to pursue the action. Accordingly, the Supreme Court concluded that the interests of justice demanded that they review the trial court’s award of prejudgment interest. The plaintiff claimed that the trial court had discretion to award pre-judgment interest. The Supreme Court reviewed §35-35 which mandates an award of treble damages, attorney’s fees and costs for injury to business or property due to any violation of the provisions of the Act. The court found that under the statute’s plain meaning the legislature intended to include all the elements of damage available to an injured plaintiff in an antitrust action. Since prejudgment interest was not specifically included in this statute it could not be awarded. The Supreme Court found that its interpretation of §35-35 was supported by judicial interpretations of the federal antitrust statutes because “the statutes mandate an award of treble antitrust damages, courts have reasoned that any such award is intended to be substantial enough to include all that the plaintiff is entitled to receive.” 235 Conn. at 42. Although federal antitrust statutes were amended in 1980 to permit the recovery of prejudgment interest on actual damages in specific and limited circumstances, federal courts have refused to award prejudgment interest under this statute unless there was proof that the defendant acted with “extreme bad faith.” 235 Conn. at 43. The Supreme Court stated that its research did not reveal any award of prejudgment interest by a state court in an antitrust action. As §35-35 mandates an award of treble damages, attorneys fees and costs, the court believed that it provided ample recovery for an injured plaintiff. Accordingly prejudgment interest was not available to the plaintiff under 151 the Act. The judgment was reversed in part and the case remanded to the trial court with instructions to vacate the judgment of $1,048,260.98 and render judgment in favor of the plaintiff in the amount of $486,432.00. 152 1005. Personal injury verdict is not defective as a matter of law if the jury awards greater than nominal economic damages but zero noneconomic damages. Childs v. Bainer, 235 Conn. 107 (1995). [see critical review of this decision in 13 Forum 467 (Nov/Dec 1995)] In a personal injury action plaintiff claimed medical expenses of $5,129.00, lost earnings of $14,000.00 and damages for pain and suffering. Plaintiff submitted evidence of a shoulder injury which resolved within one week of the collision; a neck injury, which healed within five months of the collision; and a lower back injury which resulted in a 12% permanent disability. At trial the extended duration of plaintiff’s injuries was hotly contested. The jury awarded plaintiff $3,649.00 in economic damages but did not award any noneconomic damages. Plaintiff then moved for an additur and, alternatively, to set aside the verdict as to damages only. The trial court denied this motion. The Appellate Court agreed with the plaintiff that an award of more than nominal damages coupled with an award of zero noneconomic damages seeking damages for personal injuries was inadequate as a matter of law. The Supreme Court granted certification. The Supreme Court found that the jury verdict awarding $3,649.00 in economic damages was not so low as to shock the conscience. Moreover, the plaintiff was not entitled to an additur on the basis of Johnson v. Franklin, 112 Conn. 228, 229 (1930). In Johnson, the court held that a verdict for greater than nominal damages, which equaled the exact amount of medical and lost wages claimed, with no allowance for the substantial noneconomic damages was inadequate. Contrary to the Johnson case, the court found that in this case the jury did not award the entire amount of claimed economic damages but only awarded 19% of the amount. Also, the evidence of physical injury offered by the plaintiff was not substantial and the evidence was contested. The court further found that there was nothing ambiguous about the jury award. Unlike the decision in Malmberg v. Lopez, 208 Conn. 675 (1988) (abuse of discretion to deny motion to set aside verdict in favor of plaintiff who had been awarded zero damages), the jury in this case did not award zero damages. The jury instead awarded $3,649.00 in economic damages but declined to award any noneconomic damages. There is no apparent conflict in the verdict to create an ambiguity such as that at issue in 153 Malmberg. Given the conflicting evidence of plaintiff’s injuries, the Supreme Court held that the jury’s award of 19% of the economic damages claimed and an award of zero noneconomic damages did not mandate an additur. The Supreme Court also found that §§52-572h and 52-225d of the General Statutes did not support plaintiff’s claim that both economic and noneconomic damages should have been awarded. The common law of this state does not recognize the principle that awards limited to economic damages are inadequate as a matter of law or the principle that a fact finder must award noneconomic damages each time it awards economic damages. The amount of a damage award is peculiarly within the province of the trier of fact. The language of these statutes reflected an intention that juries separately determine awards of economic and noneconomic damage. DISSENT (Berdon, J.): Justice Berdon agreed with the Appellate Court in concluding that where a plaintiff has alleged and produced evidence to support an award of both economic and noneconomic damages in a personal injury action, a jury verdict that consists of substantial economic damages but zero noneconomic damages is ambiguous as a matter of law. He found that this case was controlled by Johnson v. Franklin, 112 Conn. 228 (1930) (award inadequate as matter of law where jury awarded substantial special damages but zero general damages) and Ginsberg v. Fusaro, 225 Conn. 425 (1993) (jury verdict inherently ambiguous where liability issues are found for defendant on her counterclaim but she is awarded zero damages). Under the circumstances of the Johnson and Ginsberg cases, the courts could only speculate as to why the juries failed to award damages and therefore their verdicts created ambiguities. NOTE: See criticism of this decision, K. Calibey, Childs v. Bainer: A Misstep in the Application of Connecticut Damage Law, 13 Forum 467-470 (1995). 1006. The trial court improperly reduced award of attorney’s fees based on only one of twelve enunciated guidelines used in awarding attorney’s fees in a CUTPA case. Steiger v. J.S. Builders, Inc., 39 Conn. App. 32, 35- 39 (1995), on remand 1995 WL 218689 (Conn. Super., 4/13/96). 154 The trial court found evidence of attorney’s fees against the corporate and individual defendants in the amount of $22,000.00 plus costs. However the court only awarded $7,500.00 reasoning that the larger award “‘would equal the damages the court is allowing’” [$26,142.83]. 39 Conn. App. at 35. The court stated “‘There must be some reasonable relationship to the end result and attorney’s fees.’” 39 Conn. App. at 37, citing Hernandez v. Monterey Village Associates Limited Partnership, 24 Conn. App. 514 (1991) and Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717-719 (5th Cir. 1974). In Johnson v. Georgia Highway Express, Inc., the Fifth Circuit Court of Appeals set out twelve guidelines to consider in setting reasonable attorney’s fees. These guidelines included, inter alia, the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the customary fee for similar work in the community; the experience, reputation and ability of the attorney; the amount involved and the results obtained; and awards in similar cases. The Appellate Court found that the trial court focused on only one of the enunciated guidelines - the reasonableness of the relationship between the award of attorney’s fees and the award of damages. Accordingly the trial court abused its discretion by using only one guideline to the exclusion of others. “To interpret the attorney’s fees provision of CUTPA so narrowly would render insignificant the legislative intent - it would neither enhance the private CUTPA remedy nor serve to encourage private CUTPA litigation.” 39 Conn. App. at 32. The judgment was reversed only as to the award of attorney’s fees and costs. 1007. Sufficiency of evidence: lost earnings. Evidence concerning work intentions and prospects for work held sufficient to support $974,000 award. Mulligan v. Rioux, 38 Conn. App. 546 (1995). Plaintiff, Director of Public Works for the town of East Hartford, was arrested and charged with violating the town bidding ordinance. After his acquittal on all charges, he instituted a malicious prosecution action. The jury rendered a verdict in his favor for $974,000. The defendants moved to set the verdict aside on two grounds: (1) that they were protected from liability by the doctrine of qualified immunity; and (2) that the verdict was excessive as a matter of law. The trial court determined that the defendants were entitled to qualified immunity, and set the verdict aside rendering judgment for the defendants. The Supreme Court reversed the judgment of the trial court and remanded for determination of the defendants’ claim of 155 excessiveness. On remand, the trial court found that the evidence in support of plaintiff’s claim for lost earning capacity was speculative, and therefore set the verdict aside ordering that a hearing and damages be held. The Appellate Court reversed and reinstated the jury’s verdict. The Court held that testimony about work intentions and prospects afford a sufficient basis for determination of lost earning capacity. The evidence showed that although plaintiff was planning to retire four days after he was arrested from his job as Director of the Department of Public Works, he had planned to work in the private sector after his retirement. Because of the damage to his reputation caused by his arrest, those plans were thwarted. Plaintiff testified as to his willingness to work in order to achieve his financial goals. He also testified with regard to pursuing specific employment opportunities. One of his prospective employers testified that “the plaintiff would have been ideal for the job because of his credibility and his valuable professional and political ties in Connecticut and that he could have earned between 4% and 8% of the company’s gross sales in Connecticut, depending on the level of involvement that the plaintiff chose. Gross sales in Connecticut at the time were approximately $1.5 million.” Mulligan, at 550-551. The Appellate Court held this was sufficient evidence to support the verdict and reinstated the jury’s verdict. 1008. Charge that jury should not deduct medical expenses paid by Medicaid or Medicare from economic damages proper. Gladstone v. Grinnan, Superior Court, J.D. New Haven, No. 316424 (12/15/95) (memorandum of decision re motion to set aside verdict or for remittitur). [Full text of decision appears at 14 Forum 61 (Jan/Feb 1996)] Judge Martin, in a well-reasoned memorandum denying defendants’ motion to set aside or for remittitur, held that there was no impropriety in the charge concerning Medicaid and Medicare benefits paid to the plaintiff. The defendant argued that the charge “created the significant possibility that the jury would increase damages.” The court noted that the testimony came in without objection from the defendants, and that the charge was a correct statement of the law and in no way created a “possibility” that the jury would increase damages. The charge given was: Now, a number of times during this trial, you heard evidence that certain of the plaintiff’s medical expenses were or are being paid by Medicaid or Medicare. Both federal and state law require reimbursement of such medical expenses out of any damage award in this case. Those payments through Medicaid or Medicare are not gifts to the plaintiff, and you should not consider them as gifts and 156 subtract them from any sums, from any economic damages which you find she may have incurred. 157 11. EVIDENCE 1101. Testimony of amount of debt based on banks’ computer records where witness had no personal knowledge of the computer’s reliability and was not responsible for entering the data in the computer lacked proper foundation for admissibility into evidence. Testimony about the contents of computer records where the records were not in evidence was hearsay. Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 579-581 (1995). In an action to recover on a promissory note, judgment was rendered on the first count of the complaint for the substitute plaintiff, FDIC. The Appellate Court held that the matter had to be remanded for a new trial since there was no evidence concerning the reasonableness of the FDIC’s interest rate where the trial court had to determine whether the substitute rate was reasonable by examining documents and testimony offered by plaintiff under the rule established in Mechanics and Farmers Savings Bank, FSB v. Delco Development Company, 232 Conn. 594 (1995). The Appellate Court also reviewed evidentiary issues raised by the defendants as to the admissibility of evidence of the amount of debt that was based on computer records. The FDIC had the burden of establishing the date of default and the principal and interest due. For this purpose the FDIC called a credit specialist with the FDIC, Ralph Edwards, to testify as to certain computer records. Mr. Edwards, however, had no personal knowledge of the reliability of the computer system and the computer records had not been admitted into evidence. Nor was Edwards responsible for entering the data into the computer. His testimony therefore lacked a proper foundation and should not have been admitted. Moreover the Appellate Court held that Mr. Edwards’ testimony was hearsay since it was not based on personal knowledge. “Because the computer records were not in evidence, testimony about their contents, by a witness without personal knowledge of the contents, is hearsay. “ 38 Conn. App. at 580. The best evidence of the amount of debt and the interest calculation was the computer records. Without their admission, Edwards’ testimony about their contents was hearsay and should not have been admitted. 158 1102. Constancy of accusation testimony admissible in sexual assault case. Statements of child abuse victim made to physician for the purpose of obtaining treatment are admissible. Testimony of victim’s mother as to the victim’s mental state and demeanor but not her school grades admissible under the nonassertive conduct exception to the hearsay rule. State v. Martin, 38 Conn. App. 731, 735-743 (1995). The defendant father of the victim appealed from a judgment of conviction of sexual assault in the second degree. Defendant made three evidentiary claims on appeal: the trial court improperly allowed into evidence (1) constancy of accusation testimony; (2) the victim’s redacted clinic and hospital records under the hearsay exceptions for business records and statements made in securing medical treatment, and (3) the victim’s mother’s testimony as to her mental state and school record under a nonassertive conduct exception to the hearsay rule. (1) In order for constancy of accusation testimony to be admissible the complainant must first testify as to the facts alleged and then state that she made the complaint to some other person. Then this person can testify “not only to the fact that a complaint was made but also to the details.” 38 Conn. App. at 736. The testimony in this case was used to corroborate the victim’s testimony. “The reason for the admission of such testimony is that it would be natural for the victim of a sexual assault to relate the incident to others.” Id. The Appellate Court held that the trial court properly admitted this testimony under the constancy of accusation exception to the hearsay rule. (2) The Appellate Court also held that the trial court properly admitted portions of the victim’s hospital and clinic records. The Supreme Court has held that statements of a child abuse victim to a treating physician, although hearsay, carry an indicia of reliability necessary to be admitted as evidence. Under the two part test relied upon by the Supreme Court that was employed in United States v. Iron Shell , 633 F. 2d 77, 84 (8th Cir. 1980), the declarant’s motive was consistent with obtaining medical treatment as she went to see a physician at a clinic for psychological problems; she was in a deep depression. Secondly, it was reasonable for the physician to rely on such 159 information. This analysis is also appropriate for reviewing the admission of hospital records. The victim demonstrated a desire to recover by seeing the physician at the clinic and admitting herself to the hospital. (3) The Appellate Court also held that the trial court properly allowed testimony of the victim’s mother as to the victim’s mental state and demeanor after the sexual assault under the nonassertive conduct exception to the hearsay rule. Nonassertive conduct such as running to hide, shaking or trembling is not hearsay. 38 Conn. App. at 741. An out of court statement is not hearsay if offered to illustrate circumstantially the declarant’s then state of mind. In this case the witness, the victim’s mother, was relating her direct observations of the victim from which the trier of fact could infer her state of mind. Moreover, the defense had introduced witnesses who portrayed the victim as normal and happy after the crime. In effect the defendant opened the door to the demeanor line of questioning. The Appellate Court held that the state’s introduction of the victim’s school grades under the nonassertive conduct exception to the hearsay rule was improper. The court reasoned that unlike testimony concerning the victim’s moods and demeanor, which her mother directly observed and which constituted nonassertive conduct, testimony concerning grades was not conduct observed by the mother but was the subjective opinion of the teachers of the victim. However, the Appellate Court held that, although improper, the evidence was cumulative of the victim’s mental state and was therefore harmless. 1103. Fifth Circuit scraps per se rule against admitting polygraph evidence. U.S. v. Posado, 57 F.3d 428 (CA 5, 1995). The court cited several reasons why the defendants might be entitled to the admission of polygraph evidence bolstering their claim that they were unlawfully arrested during an airport encounter with police, and that their consent to search their luggage was invalid. Foremost among these reasons was the U.S. Supreme Courts’ relaxation of the rules on admissibility of scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The court also relied on scientific advances made in polygraphic techniques since it was rejected in Frye v. U.S., 293 F. 1013 (CA DC 1923). When Frye was decided, polygraph machine measured only changes in the subject’s systolic blood pressure. Modern polygraph machines measure changes in blood pressure, pulse, respiration and galvanic skin response. 160 Moreover, current estimates are that polygraph technique gives an accurate reading of truth or falsity 70-90% of the time. Polygraphs are widely used, the court noted, and the field is becoming more standardized and professional. Also implicating the result was that the evidence would be offered at a suppression hearing before a judge, and that the court saw reason to doubt the officer’s versions of the events. It felt polygraph evidence would be helpful to resolve the competing claims. It remanded the case requiring the district judge to hold a new hearing on the admissibility of the polygraph evidence. There has been extensive speculation as to the significance of this decision in other settings. Besides criminal cases, lie detectors could be used in civil cases which involve one-on-one credibility issues, such as sexual harassment cases and custody battles where a parent is accused of abuse. In fact, the court acknowledged that it may be “opening a Pandora’s Box.” See also 95 LWUSA 750 (7/31/95), discussing this issue. But see U.S. v. Sherlin, 67 F.3d 1208 (CA 6, 1995), in which the Sixth Circuit held that the district court did not abuse its discretion when it refused to admit polygraph evidence pursuant to Rule 403 because its probative value was outweighed by the danger of unfair prejudice. 1104. Hypnosis: Admissibility of testimony concerning memories elicited by hypnosis therapy should be determined on totality of circumstances basis. Such basis includes consideration of purpose of hypnosis, suggestions received by witness, existence of permanent record of hypnosis, corroborating evidence of refreshed memories, hypnotist’s qualifications, and expert evidence regarding liability of hypnotic procedures used. Borawick v. Shay, 68 F.3d 597 (CA 2, 1995). Plaintiff, a 38-year old woman, brought a diversity tort action alleging that her aunt and uncle sexually abused her in 1961 and 1964 when she visited them at their home, when she was aged 4 and 7. Plaintiff had no memory of the alleged abuse for more than 20 years. In the 1980’s she received psychiatric and medical treatment for panic attacks and chronic physical illness. She underwent 12-14 hypnotic sessions in 1987 and 1988. Before and immediately following these sessions, she had no recollection of any abuse. In depositions, the hypnotist testified that plaintiff revealed under hypnosis that her aunt and uncle sexually abused her, but that he did not reveal to the plaintiff what she had described because, in the hypnotist’s opinion, such revelations would have been “devastating” and would probably surface in time. 161 Plaintiff testified that several months after her final hypnotic session she experienced her first non-hypnotic memory of sexual abuse by her father, who was not a defendant. Subsequent memories surfaced in “bits and pieces.” Her first memory of her aunt’s abuse occurred in February 1989, and her memory of being anally raped by her uncle surfaced in 1990. The court stated that it had not yet addressed the admissibility of post-hypnotic testimony of memories elicited as a result of hypnosis. It noted that numerous state and federal courts have considered this issue, but nearly all of them dealt with recall in the context of hypnosis that was specifically intended to enhance a memory of a particularly known or suspected occurrence. The court stated that it was not aware of any case concerning the specific issue presented: the admissibility of testimony about memories of childhood sexual abuse that are recalled for the first time in adulthood following the use of hypnosis as part of psychotherapy. After setting out the criteria to be considered, the court reviewed the evidence and affirmed the district court’s grant of summary judgment. 1105. Judicial Notice: A party asking the trial court to take judicial notice of another file must particularize those items which he or she seeks to have admitted. Drabik v. East Lyme, 234 Conn. 390 (1995). During course of trial, counsel asked court to take judicial notice of the contents of a file in a previous case between the same parties. The court denied the request, but “reserved the issue of whether it would take judicial notice of any portion of the record in the prior case until `counsel points out the specific matters in the course of the hearing today and subsequently.’“ Drabik at pp. 397-98. Counsel, however, never offered specific documents or items from the previous file. The Supreme Court, in affirming the trial court, reasoned that counsel cannot offer “an indiscriminate mass of material” (Drabik at p. 399) with generalized claims about what the materials purportedly demonstrate. Counsel must offer particular documents or pieces of evidence with an explanation as to relevance of each item. 162 1106. Adequacy of foundation. State v. Sherman, 38 Conn. App. 371, cert. denied 235 Conn. 905 (1995). In a murder prosecution, the medical examiner initially determined that the victim had died between 24 and 36 hours before she was found. Given this testimony the defendant husband had an alibi as he had left on a sailing trip with four friends more than 60 hours before the body was found. When the medical examiner learned that the temperature of the room where the body was found was “very cold, like a refrigerator,” she changed her opinion to state that the victim had died between 48 and 96 hours before the body was found. She further testified that her opinion as to the time of death rested primarily on the degree of rigidity of the victim. The time it takes a body to become rigid and the length of time it stays rigid are affected by the temperature of the room. The State argued, therefore, that her opinion would change depending on room temperature. The defendant objected to the medical examiner’s testimony regarding time of death as he claimed the factual assumptions which she made regarding the temperature of the room were not proved with sufficient particularity and reliability. The trial court found that there was an adequate factual foundation for the opinion. The Appellate Court affirmed, reasoning that the medical examiner “based her estimate on her direct observation of the body and information concerning the temperature of the room in which the body was found. She utilized her expertise, which is not challenged, to arrive at assumptions regarding the temperature of the room and the effect that the temperature would have on the rate of rigidity of the body .... Consequently, the uncertainties in this case go to the weight to be afforded [the medical examiner’s] opinion, not to its admissibility.” Sherman, at 408-409. 1107. Even if liability is admitted, evidence of speed, physical impact and the like is admissible as relevant to the probable nature and extent of injuries. Gladstone v. Grinnan, Superior Court, J.D. New Haven, No. 316424 (12/15/95) (memorandum of decision re motion to set aside verdict or for remittitur). [Full text of decision appears at 14 Forum 61 (Jan/Feb 1996)] Relying on Berndston v. Annino, 177 Conn. 41, 43 (1979) the court, Martin, J., permitted evidence of several photographs of the damage to the defendants’ car and to the porch of a house that the car hit. The court also permitted other liability evidence as to speed, including an opinion from a police officer. Liability was admitted. The court held that the admission of the opinion from the police officer might have been error under §220(D), but in light of the abundance of other independent evidence of speed, any error in this 163 respect was harmless. The rule of Berndston v. Annino applies in those circumstances where liability is admitted. Photographs and other evidence as to how the accident occurred is admissible because the evidence is relevant to the severity of impact, and inferentially to the injuries sustained. This is especially so in those cases where liability is admitted but proximate cause is disputed. 1108. Trial court properly excluded evidence of lead levels in properties other than the subject premises as irrelevant. Gore v. People’s Savings Bank, 40 Conn. App. 219, 226-227 (1996). The trial court properly sustained defendants’ objection to questions concerned with other properties owned by the defendants. The trial court did allow the plaintiff to question the program coordinator for the lead poisoning prevention project as to whether she knew of any other apartments within the same building that contained similar levels of lead. Evidence of lead levels in other properties however was irrelevant to the issues before the court involving the subject premises. 1109. Hearsay: 1) a statement made in the context of the mother/son relationship does not carry with it the indicia of reliability necessary to invoke the residual exception to the hearsay rule; 2) victim’s statement not admissible under state of mind exception to the hearsay rule where victim’s state of mind not in issue. State v. Rivera, 40 Conn. App. 318 (1996) Shortly before his murder, victim expressed to his mother fear of being killed by girlfriend’s mother for debts owed. During the murder trial, the defendant, a person other than victim’s girlfriend’s mother, sought to offer the testimony of the victim’s mother concerning her son’s statement to her about his fear of being harmed by his girlfriend’s mother. Defendant also sought to offer testimony from victim’s mother that she believed that her son’s girlfriend’s mother played a role in his death. Defendant argued that the testimony was admissible to show “at the least, the victim’s mother suspected that somebody other than the defendant committed the crime.” He offered the statements under the state of mind exception to the hearsay rule and the residual exception to the hearsay rule claiming that the statements had a strong indicia of reliability given that the conversation took place in the context of mother/son relationship. The trial court sustained the state’s objection to the testimony and defendant appealed. The Appellate Court upheld the trial court’s decision finding the testimony neither admissible under the state of mind exception nor the residual exception. The court articulated that 164 in order for evidence to be admissible under the state of mind exception, the state of mind of the declarant must be in issue. In the present case, the Appellate Court reasoned that the only defense espoused by defendant was that at the time of the murder he was with friends in an apartment three floors up from where defendant was murdered. This defense did not call into question either the defendant’s or victim’s state of mind. As such, any testimony pertaining to the victim’s state of mind was irrelevant and therefore properly excluded as not admissible under state of mind exception. With respect to defendant’s claim that the testimony fell within the residual exception to the hearsay rule, the court stated that for hearsay evidence to be admissible under this exception, the offering party must show a reasonable necessity for the admission of the evidence and that such evidence is sufficiently reliable and trustworthy to satisfy the traditional hearsay exceptions. Here the court found that defendant’s sole argument in support of its claim that the evidence was sufficiently reliable and trustworthy so as to satisfy the residual exception to the hearsay rule was that the statement was made in the context of the mother/son relationship. The Appellate Court found this insufficient to satisfy the reliability test, and therefore held that the trial court properly excluded the evidence on this ground as well. 1110. Rejection of evidence of results of polygraph test upheld by Appellate Court. Supreme Court to review the issue. State v. Porter, 39 Conn. App. 800 (1995), cert. granted 236 Conn. 908 (1996). The Appellate Court held that the trial court properly refused to admit into evidence the results of a polygraph test taken by the defendant. It also held that the trial court properly denied the defendant’s motion for an offer of proof regarding the test results. The Appellate Court stated that the defendant “correctly recognizes that our Supreme Court and this court have consistently held polygraph evidence to be per se inadmissible for both substantive and impeachment purposes.” 39 Conn. App. at 802. Nonetheless, the defendant argued that the court should reconsider the validity of this firmly established precedent in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The Appellate Court, in response to this claim, stated (39 Conn. App. at 802): Whether a Supreme Court holding should be reevaluated and discarded is not for this court to decide. ... We therefore conclude, on the basis of Connecticut precedent, that the 165 trial court properly denied the defendant’s motion to admit the results of the defendant’s polygraph test. The Supreme Court granted certification on the following issues: Under the circumstances of this case: 1. Did the Appellate Court properly conclude that the trial court was correct in denying the defendant’s request for an evidentiary hearing regarding the admissibility of the defendant’s polygraph test? 2. Should this court reconsider the applicability of the test for determining the admissibility of scientific evidence set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1023), in light of the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993)? 166 12. ATTORNEYS 1201. U.S. Supreme Court upholds Florida ethics rule requiring lawyers to wait 30 days before sending targeted direct mail solicitation letters to victims of accidents or disasters. Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995). Florida adopted an ethics rule requiring lawyers to wait 30 days before sending targeted direct mail solicitation letters to victims of accidents or disasters. The U.S. Supreme Court held that the rule materially advances the state’s substantial interests in protecting privacy and tranquillity of personal injury victims, and the reputation of the legal profession, as shown by the state bar’s detailed study indicating that the public view direct mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the legal profession. The court also held that the rule was reasonably tailored in scope and duration to do so, and thus does violate the First Amendment’s protection of commercial speech. The Florida bar submitted an 106-page summary of its 2-year study of lawyer advertising and solicitation to the district court. The summary contained data, both statistical and anecdotal, supporting the bar’s contention that the Florida public views direct mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly on the legal profession. As of June 1989, the study showed that lawyers mailed 700,000 direct solicitations in Florida annually, 40% of which were aimed at accident victims or their survivors. A survey commissioned by the bar indicated that Floridians “have negative feelings about those attorneys who use direct mail advertising.” 54% of the general population surveyed stated that contacting persons concerning accidents or similar events is a violation of privacy. A random sampling of persons who received direct mail advertising from lawyers in 1987 revealed that 45% believe that direct mail solicitation was designed to take advantage of gullible or unstable people; 34% found such tactics “annoying or irritating;” 26% found the practice “an invasion of your privacy;” and 24% reported that it “made you angry.” 27% of direct mail recipients reported that their regard for the legal profession and for the judicial process as a whole was “lower” as a result of receiving direct mail. 167 The court characterized the “anecdotal record” mustered by the bar as “noteworthy for its breadth and detail.” 63 LW at 4647. The bar produced numerous editorials from Florida newspapers criticizing Florida lawyers who send targeted direct mail to victims shortly after their accidents, and contained many pages of excerpts of complaints from direct mail recipients. For example (63 LW 4647): [A] Florida citizen described how he was “appalled and angered by the brazen attempt” of a law firm to solicit him by letter shortly after he was injured and his fiancee was killed in an auto accident. ... Another found it “despicable and inexcusable” that a Pensacola lawyer wrote to his mother three days after his father’s funeral. ... Another described how she was “astounded” and then “very angry” when she received a solicitation following a minor accident. ... Still another described as “beyond comprehension” a letter his nephew’s family received the day of the nephew’s funeral. ... One citizen wrote, “I consider the unsolicited contact from you after my child’s accident to be of the rankest form of ambulance chasing and in incredibly poor taste ... I cannot being to express with my limited vocabulary the utter contempt in which I hold you and your kind.” The majority decision was authored by Justice O’Connor. The dissenters were Justices Kennedy, Stevens, Souter and Ginsburg. 1202. The judicial branch has authority to discipline prosecutor. Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-581 (1995). The judicial branch, through the Statewide Grievance Committee, can regulate and sanction conduct by a prosecutor for the exercise of his official judgment without violating the separation of powers mandated by Article Second of the Constitution of Connecticut. Massameno filed a declaratory judgment action against the Statewide Grievance Committee claiming that the committee had no subject matter jurisdiction over allegations involving misconduct by him because he is an officer of the executive 168 branch. He also claimed that the separation of powers principle embodied in the Constitution of Connecticut, Article Second would be violated if he was investigated and disciplined by the defendant for acts committed in his prosecutorial official capacity. The statewide grievance panel had found probable cause that Massameno violated five rules of professional conduct. The grievance proceedings were stayed pending resolution of the declaratory judgment action. The trial court rendered judgment in favor of the defendant. The Supreme Court utilized the following test in resolving the constitutional issue: in determining whether one branch’s actions violate the constitutional mandate of the separation of powers doctrine, the court will consider if the actions constitute: “(1) an assumption of power that lies exclusively under the control of another branch; or (2) a significant interference with the orderly conduct of the essential functions of another branch.” 234 Conn. at 553. The court held that the judicial branch may exercise jurisdiction to supervise and discipline prosecutors concurrently with the executive branch. The court found nothing in the history of the Office of State’s Attorney that required the judicial branch to abdicate its inherent role in the supervision of the bar in favor of the executive branch or which vested the exclusive power to discipline a prosecutor in the executive branch. The court determined the second prong of the test without findings of fact by the trial court as to the underlying assertions of misconduct contained within the grievance complaints. The court decided in this case “only whether the defendant, by merely subjecting prosecutors to grievance proceedings, creates a significant interference with the orderly conduct of the essential functions of the executive branch of government in violation of Article Second of the Constitution of Connecticut.” 234 Conn. at 571. The court concluded that this did not create a significant interference. The court was unpersuaded by plaintiffs’ arguments that the grievance process interfered with workload pressures, concerns about confidentiality, publicity, dual accountability and the independent judgment of the prosecutor. The Supreme Court found that particular prosecutorial functions, such as charging decisions, were not generally well suited for broad judicial oversight as they involve the exercise of judgment and discretion which are often difficult to articulate 169 in a manner suitable for judicial evaluation. 234 Conn. at 575. Accordingly, “in a particular grievance proceeding a prosecutor may be able to allege that, because of separation of powers principles, different rules apply to him or her than the average attorney.” 234 Conn. at 575-576. This did not mean that all such decisions should escape scrutiny. “The unique role of prosecutors does not...remove them altogether from the requirements of the canons of ethics or the Rules of Professional Conduct.” Id. at 576. Therefore the Supreme Court rejected plaintiffs’ unconditional broadly stated attack on the authority of the judicial branch to investigate, discipline or recommend the suspension or removal of prosecutors. CONCURRENCE (Berdon, J.) Justice Berdon stated that the majority failed to acknowledge explicitly that the prosecutorial function is exclusively within the executive branch of our state government. Whether a state’s attorney is subject to judicial review because it would interfere with the function of the executive branch must be determined on a case by case basis. 1203. “Of counsel” affiliations may expose law firms to vicarious liabilities in the form of malpractice claims, disqualifications and disciplinary proceedings. Listing a lawyer as “of counsel” on letterhead or affiliating with a firm in another city, may offer significant business opportunities, but also may expose the firm to unintended liability and ethical consequences. Unforeseen problems can arise from these seemingly beneficial arrangements because of uncertainty in the meaning of the terms “of counsel.” This uncertainty can create vicarious liability for a firm in legal malpractice, disqualification or even discipline for the conduct of others. The term “of counsel” can include a variety of relationships between an attorney and a law firm. On occasion it can even describe an association between two separate firms. Such relationships often are established to accommodate a retired partner or attorney with only a temporary tie to the firm for business purposes, such as assisting each other’s clients or referrals. “Of counsel” may refer to part-timers, retired partners, probationary partners and super associates. 170 An analysis of the issue is presented by Ronald E. Mallen and Sherri J. Conrad in the July 17, 1995 National Law Journal, p. B4. 1204. A law firm may represent itself in an action against a former client to recover a fee. In Cooney & Bainer, P.C. v. Milum, 14 Conn. L. Rptr. 426 (1995)(Silbert, J.) the court held that a law firm may represent itself in an action against a former client to recover a fee, although not by the particular attorney who performed the work with a client because that attorney will be a material witness. The opinion also holds that the rule that a corporation may not file a pro se appearance does not apply to a law firm organized as a professional corporation. 171 1205. An attorney may not appeal a finding of probable cause by the Statewide Grievance Committee. In Maco v. Statewide Grievance Committee, 14 Conn. L. Rptr. 374 (1995) (Norko, J.) the court held that an attorney may not appeal a finding of probable cause by the Statewide Grievance Committee even if a favorable ruling on the attorney’s procedural claims would invalidate the committee’s authority to proceed with an investigation by a reviewing subcommittee. The court’s analysis was that the availability of a later hearing before the reviewing committee would remedy any constitutional deprivation resulting from the lack of an opportunity to present a defense at the probable cause stage. The grievance committee routinely refuses a hearing on the issue of probable cause. Frequently local panels will decide no probable cause, and the Statewide Grievance Committee will reverse and order a hearing by a reviewing committee. The significance of the determination of probable cause is that the record at that point becomes public. Notwithstanding this, the court held that affording an opportunity to present a defense at the reviewing committee stage remedies the constitutional issue. The case involves a grievance filed against a state’s attorney who investigated the charges of a child’s sex abuse filed against Woody Allen. 1206. Attorney claiming special expertise must meet higher standard of care. Duffey Law Office v. Tank Transp., Inc., 535 N.W.2d 91 (Wis. Ct. App. 1995). The Court of Appeals of Wisconsin held that an attorney claiming to have special expertise in a particular area of law may be held to a standard of care consistent with that level of expertise. A company retained an attorney to negotiate a collective bargaining agreement. The attorney reportedly presented himself as an expert in the area of collective bargaining agreements. After the company was sued by a third party on the basis of the agreement, it sued the attorney’s firm for legal malpractice. The company argued that the lawyer should be held to the degree of skill and care required of lawyers in the field of collective bargaining. The firm asserted the applicable standard of care was “that degree of knowledge and ability usually exercised by attorneys under similar circumstances.” The trial court dismissed the company’s 172 claim, and the Appellate Court reversed, noting that the comment to the Wisconsin Professional Responsibility provision prohibiting most lawyers from claiming they are specialists indicates that lawyers may say their practices are limited to certain areas. Citing analogous cases involving physicians and dentists, the court concluded that lawyers claiming a certain specialty should be held to the standards of “the class” to which they claim they belong. 1207. Law firm may deduct as business expense payments covering client litigation expenses. Litigation expenses paid by a law firm pursuant to a contingent fee contract under which reimbursement, if any, comes out of the attorney’s fees, are immediately deductible under §162 of the Internal Revenue Code according to the U.S. Court of Appeals for the Ninth Circuit. Boccardo v. Commissioner of Internal Revenue, 56 F.3d 1016 (CA 9, 1995). The basis of the court’s analysis is that the firm had no contractual right to reimbursement from the client, and therefore the advances were not loans to the client. The firm, like other business, makes a profit only if it keeps costs, including litigation expenses, lower than the fees it obtains from clients in those cases that are successful. As such, the expenses are ordinary and necessary business expenses and therefore deductible. 1208. Attorney not liable under ERISA for failing to repay health plan. Hotel Employees & Restaurant Employees International Union Welfare Fund v. Gentner, 50 F.3d 719 (CA 9, 1995). 1209. Departing partner cannot solicit clients before announcing he is leaving. Grauvard Mollen Dannet & Horowitz v. Moskovitz, 86 NY2d 112, 653 N.E.2d 1179 (1995). A departing partner in the plaintiff law firm solicited one of the firm’s clients to come with him before he told the firm he 173 was leaving. The firm initiated suit for breach of fiduciary duty, claiming $40 million in damages. The Court of Appeals, New York’s highest court, held that as a matter of principle, pre-resignation surreptitious solicitation of firm clients for a partner’s personal gain exceeds what is necessary to protect the important value of client freedom of choice in legal representation. The court stated that this type of behavior thoroughly undermines the loyalty owed partners. It disagreed with former Yale Law School Professor Geoffrey Hazard, whom it quoted as saying that the public policy favoring client freedom of choice in legal representation should override the firm’s proprietary interest in holding its clientele. The court further held that the firm can also sue for breach of contract, since its partnership agreement prohibited departing partners from doing anything to impair the firm’s relationship with its existing clients and business, and required the partners to integrate to the extent possible relationships between the firm’s clients and the other partners. The court further held that the law firm can sue for fraud on the ground that the departing partner signed a partnership agreement without intending to comply with it. 1210. Attorney’s disclosure of information concerning former client to listing broker who was engaged in litigation with this client held to be in violation of Rule 1.6 of the Rules of Professional Conduct. Lewis v. Statewide Grievance Committee, 235 Conn. 693, 697- 704 (1996). The grievants had engaged the plaintiff to represent them with regard to a construction contract in which they arranged for the purchase of a new home to be built for them by Ricci Construction Company. This company failed to complete the construction and the grievants discovered that it had retained possession of their deposit of $19,100.00 despite a provision in the construction contract indicating that the deposit should have been retained in escrow by the listing broker. Plaintiff brought a lawsuit against Ricci Construction on behalf of the grievants in March 1991 claiming that the company had, among other things, breached its contract with them. For reasons unrelated to the present action the grievants terminated the plaintiff’s services in June or July 1991. 174 Subsequently, grievants filed a complaint against the listing broker and its agent for their failure to safeguard the deposit that should have been held in escrow. Prior to a rehearing of this issue to be held in March 1992, a representative from the listing broker contacted the plaintiff with regard to his prior representation of the grievants. In a letter to the listing broker’s representative plaintiff stated “During the course of my representation of Mr. and Mrs. Hewawasam on the contract for the purchase of Lot #2, Williams Road, Wallingford, Connecticut, neither Mr. or Mrs. Hewawasam ever mentioned that the $19,100.00 should be kept in escrow by the realty company. The facts given to me were that the checks were made out to Ricci Construction Company and paid directly to it.” The above letter became the basis of the grievance complaint filed against the plaintiff. The local panel found that the complaint was not supported by probable cause however the Statewide Grievance Committee did find probable cause that the plaintiff had engaged in professional misconduct and referred the matter to a reviewing committee. This committee issued a proposed decision finding the plaintiff had engaged in misconduct under Rule 1.6 and recommended reprimand. The Statewide Grievance Committee adopted the reviewing committee’s proposal in its entirety and issued a reprimand. Plaintiff appealed from the decision of the Statewide Grievance Committee. The trial court dismissed the plaintiff’s appeal. Contrary to plaintiff’s argument, the supreme court held that the information contained in the letter that had been disclosed to a third party was not “impliedly authorized” under Rule 1.6(a). This rule would presumably authorize disclosure to third parties of all information contained in the complaint against Ricci Construction that had been filed by the plaintiff on behalf of the grievants. But this authority did not encompass the disclosure of information not contained in the complaint. The letter that was disclosed exceeded the information that plaintiff was permitted to disclose. There was nothing in the complaint against Ricci Construction concerning whether the grievants ever had “mentioned that the $19,100.00 should be kept in escrow by the [listing broker].” 235 Conn. at 700. Plaintiff also argued that he was permitted to reveal the confidence for the purpose of preventing fraud under Rule 1.6(c)(2). Under this rule the attorney must (1) reasonably believe such revelation is necessary; (2) reveal the information only to the extent the attorney reasonably believes is necessary; (3) reasonably believe the client has or is committing a fraudulent act; and (4) reasonably believe the attorney’s services had been used in committing that fraudulent act. 235 Conn. at 701. The supreme court held that the letter could not be justified as a proper disclosure to rectify an alleged fraud against the listing broker because the grievants had not used the plaintiff’s services to 175 commit that alleged fraud. Also, the letter could not be justified as a proper disclosure to rectify the fraud allegedly being committed against Ricci Construction because the disclosure did not reveal information in a way that was reasonably necessary to correct the alleged fraud because it did not contradict any of the pleadings in the action against the company. The letter was not reasonably calculated to rectify any alleged fraud in the complaint against the company. The trial court properly held that the disclosures, as a matter of law, fell outside the compass of the disclosures that would be privileged by Rule 1.6. 1211. All designated members of a reviewing committee are not required to attend grievance hearings held pursuant to §51- 90g(a) and §27J(a) of the Practice Book. A non-attending member can read the record and vote. Lewis v. Statewide Grievance Committee, 234 Conn. 693, 704- 708 (1996). Plaintiff claimed that his due process rights were violated because the lay person on the reviewing committee who ultimately voted for the plaintiff’s reprimand and which vote made a majority vote did not personally attend the grievance hearings. The supreme court held that the plaintiff’s due process rights were not violated. It is well recognized that the members of an administrative agency may vote after reading the record. The trial court correctly observed that most of the relevant facts were undisputed and that credibility was not a major factor in the reviewing committee’s decision. Furthermore, “even if the plaintiff’s credibility had been at issue, due process requires no more than the presence of two of the three reviewing committee members at the grievance hearings when, as in the present circumstances, the third member read the full record and transcript, and all proceedings were conducted in full compliance with the applicable procedural rules.” 235 Conn. at 708. In a concurrence Justice Berdon found that the Rules of Procedure of the State Grievance Committee, Rule 7F, which allow a factfinder to cast a tie-breaking vote based upon a mere reading of the record, was constitutionally deficient. Judge Berdon concurred in the result because plaintiff never objected to this procedure before the grievance committee. 1212. Failure of state to comply with 30-day statutory time frame permits attorney to disburse without protecting state’s lien. Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829 (1996). 176 Defendant represented a client in a personal injury action arising from an automobile accident. On July 14, 1992, plaintiff notified the defendant of its statutory lien without specifying the amount. The letter stated that upon settlement or other recovery, the defendant was immediately to send a letter to the plaintiff requesting a final statement of the State’s claim. The letter further indicated that if a final statement was not sent within thirty days of that request, the defendant would be free to release the proceeds. On September 4, 1992 following settlement of the matter, the defendant sent a letter to the plaintiff stating “please provide me with the amount of the State’s lien.” On October 3, 1992, forty days after sending the letter and not having received a response, the defendant disbursed the balance of the settlement proceeds. The fact finder concluded that the defendant had complied with the statute in dispersing the proceeds of the settlement, not having been informed of the amount of the lien within thirty days of the plaintiffs having received written request of such lien. The court held that the language of §17(b)-94 is clear an unambiguous and requires the commissioner to inform the attorney of the amount of the lien which is to be paid within thirty days of receipt of written request for such information. If the information is not received the attorney may distribute the proceeds. Judge Schaller dissented reasoning that when applied to the facts of this case, the statute, although clear on its face, reveals a latent ambiguity and therefore the court should turn for guidance to the purpose of the statute in its legislative history to resolve that ambiguity. The legislative history makes it clear that the legislature enacted this statute not only for the benefit of the beneficiary and the attorney, but for the benefit of the State as well. Accordingly, the attorney is obligated to notify the State that the case has settled, not to merely request the amount of the lien. 1213. Attorney liability to nonclients. 31 Tort and Insurance L.J. 736 (1996). In the Spring 1996 Tort and Insurance Law Journal there is an excellent article of attorney liability to nonclients by Jay Feinman. For many years attorneys were absolutely immune from suits by nonclients. As the law began to change in the 1960’s only limited exceptions to the rule of no liability developed. Now, however, decisions of many jurisdictions have enlarged the circumstances in which attorneys are liable to nonclients. This expansion of liability is part of a broader expansion of liability for negligently caused economic loss, according to the author. 177 The doctrines applicable to attorney liability to nonclients are examined. Notwithstanding the lack of privity or near privity, recovery has been allowed in negligence, negligent misrepresentation, third party beneficiary theories, and on a reliance theory. 1214. Statute prohibiting lawyers from using police records to solicit clients held unconstitutional. LaValle v. Udall, U.S. District Court, New Mexico, #94-04-M (2/16/96)(reported at 96 LWUSA 325 (4/8/96)) New Mexico enacted a statute prohibiting lawyers and chiropractors from using police records to solicit clients. U.S. District Court for the District of New Mexico held that the statute violated the First Amendment. The state argued that it had a “substantial interest” in protecting the privacy of accident victims. The District Court held, however, that the state statute was too narrow, because it applied only to lawyers and chiropractors, and not to funeral homes, insurance companies, the news media and others. The statute was also too broad because it had no time limit. The court compared it to the statute requiring lawyers to wait 30 days before sending direct mail to accident victims, which the U.S. Supreme Court recently upheld as a “short temporal ban.” Florida Bar Association v. Went-For-It, Inc., 115 S.Ct. 2371 (1995). The fact that police records can be abused does not justify a total ban on their use, according to the District Court. 178 13. DISSOLUTION 1301. Supreme Court creates exception where counsel appointed pursuant to §46b-54 may file an appeal on behalf of the minor child provided that the trial court determines that the appeal is in the child’s best interests. Newman v. Newman, 235 Conn. 82 (1995). The issue certified was as follows: “Did the Appellate Court properly conclude that an appeal by minor children, acting through counsel appointed pursuant to §46b-54 and not through a guardian ad litem or next friend, is improper and is thus subject to dismissal?” The general rule is that minor children may only appeal from a trial court order in a dissolution case regarding their support through a guardian or next friend. The Supreme Court created an exception to this rule where the minor children can persuade the trial court that such an appeal is in their best interests. The trial court must first be persuaded that the children’s attorney will not experience a conflict between his role as an advocate and the child’s best interests. The court should then take all available information into account, such as the nature of the court order at issue; whether there is likely to be an appeal of the order, irrespective of that requested by the minor children; the desires of the parent who does not intend to file such an appeal; whether the particular risks that underlie the general rule are likely to be realized by permitting such an appeal in the particular case (for example, the risk of creating undue conflict in the family); the potential for conflicts to arise between the best interests of the children and their desire to prosecute the appeal; the good faith of the attorney making the request for such an appeal on behalf of the children; the degree to which an appeal will unduly drain resources that could be better spent on the children; and whether there is any reasonable basis for an appeal. 235 Conn. at 104. The Supreme Court further stated that if the trial court granted the request the minor children would be deemed parties within the contemplation of §52-263 and §4000 of the Practice Book. If the court denied the request its ruling would be subject to appellate review under an abuse of discretion standard. 179 In this case since the minor children took the appeal without the benefit of the newly created exception to the general rule the case was remanded to the trial court for determination as to whether the requirements of the exception had been met. CONCURRENCE (Berdon, J.): Justice Berdon agreed that an attorney appointed for a minor child pursuant to §46b-54 may appeal on behalf of the child any judgment that affects the child provided that the trial court determines that such an appeal is in the child’s best interests. Justice Berdon reached this conclusion based solely on §46b-54. He stated that the broad language of this statute included the right of the attorney on behalf of his or her minor client to appeal subject to the approval of the trial court. 1302. Post dissolution stipulation of parties stating that defendant was to pay child support based upon the child’s support guidelines and workers’ compensation rate received held to include all payments pursuant to the Workers’ Compensation Act. Zadravecz v. Zadravecz, 39 Conn. App. 28 (1995). The parties’ marriage was dissolved on May 6, 1987. The dissolution decree included an order that defendant pay plaintiff $100.00 per week as support for the parties’ two minor children. In May, 1992, defendant sustained a work-related injury and was temporarily disabled from his job. In July, 1992, defendant filed a motion for modification of the child support orders. On August 27, 1992, the parties entered into a written agreement that was approved by the court. The order provided: “...once workers’ compensation benefits become available defendant will retroactively pay the plaintiff child support, based upon child support guidelines and workers’ compensation rate received, from the date of the injury, May 26, 1992...” 39 Conn. App. at 29. On October 1, 1993, the defendant filed a “Motion for Advice” requesting guidance as to whether the stipulated judgment meant the defendant was required to include workers’ compensation specific indemnity payments as income for purposes of determining child support payments. The trial court held that specific award benefits received by defendant were includable as income for the purpose of determining child support obligation. 180 On appeal the Appellate Court first addressed the propriety of a “Motion for Advice”. The court concluded that even though it was labeled a “Motion for Advice” the motion was seeking clarification of a prior order of the court. Motions for clarification are commonly considered by trial courts and are proper even though not specifically described in the Rules of Practice. Therefore the trial court had jurisdiction to consider the defendant’s motion. The Appellate Court noted that the trial court did not provide the legal basis for its conclusion and stated that defendant should have sought an articulation. In the absence of an articulation the Appellate Court presumed that the trial court acted properly. The Appellate Court concluded that the stipulation of the parties did not refer to different kinds of payments under the Workers’ Compensation Act. Under the stipulated judgment “workers’ compensation rate” included all payments pursuant to the act. 1303. Specific indemnity award under Workers’ Compensation Act not based on loss of earnings and therefore not includable in income under the Child Support Guidelines. Rodriguez v. Rodriguez, 14 Conn. L. Rptr. 215 (1995). 1304. The Appellate Court reverses financial orders in dissolution decree where trial court did not cite statutes under which it considered its award of property and support. Caffe v. Caffe, 40 Conn. App. 178, cert. granted 236 Conn. 917 (1996). The Supreme Court granted certification limited to the following issue: Under the circumstances of this dissolution of marriage case, did the Appellate Court properly reverse the judgment of the trial court as to financial matters on the ground that the trial court did not refer to the statutes governing such matters? 181 The plaintiff claimed that the Appellate Court’s reasoning was directly contrary to Collucci v. Collucci, 33 Conn. App. 536 (1994), as well as a long line of decisions from the Appellate Court as well as the Supreme Court. 182 14. GENERAL PRACTICE 1401. Statutes banning the sale, transfer or possession of assault weapons do not violate the right to bear arms guaranteed by Article First, Section 15, of the State Constitution. Benjamin v. Bailey, 234 Conn. 455 (1995). This decision provides a comprehensive discussion on the state constitutional right to bear arms. 1402. Zoning decision appealed to federal court - under §1983. DeBlasio v. Zoning Board of Adjustment for the Township of West Amwell, 53 F.3d 592 (CA 3, 1995). The Third Circuit has held that an arbitrary zoning decision violates “substantive due process” under the U.S. Constitution. Accordingly, an action under 42 USC §1983 should be permitted. The case has wide-ranging implications. The dissent pointed out that the ruling will require the federal courts to sit as “zoning boards of appeals.” Moreover, land owners may want to bypass their state zoning appeals process and go directly to federal court under §1983 because attorney’s fees are available in that remedy, and a federal court may be less sympathetic than a state court to local zoning boards’ concerns. However, the First Circuit is regarded as hostile to substantive due process §1983 land use claims. The Second, Fourth and Eleventh Circuits have case law suggesting that the mere ownership of land is not enough to show a due process violation. The controversy is discussed at length in 95 LWUSA 487 (6/5/95). On April 23, 1996 the Supreme Court decided Jade Aircraft Sales, Inc. v. Crystal, 236 Conn. 701, holding that there was an adequate remedy available to the plaintiff under state law by taking a tax appeal. Accordingly, the trial court did not have jurisdiction to entertain a §1983 civil rights action and the claim was properly dismissed. The court held that the remedy of tax appeal under §12-422 was adequate, even though in that remedy attorney’s fees were unavailable, and even though §14-422 contained a short time within which the appeal must be brought. 183 1403. Three requirements of collateral estoppel set out. Busconi v. Dighello, 39 Conn. App. 753, 767-768 (1995), cert. denied 236 Conn. 903 (1996). The court noted that collateral estoppel, or issue preclusion, is derived from the doctrine of res judicata, and prohibits subsequent litigation of a different cause of action involving issues determined in a former between the same parties. However, for a party to use the doctrine with success, three requirements must be met: 1. The issue must have been fully and fairly litigated in the first action; 2. The issue must have been actually decided in the first action; and 3. The decision must have been necessary to the judgment. See also Corey v. Avco-Lycoming Division, 163 Conn. 309 (1972), cert. denied 409 U.S. 1116 (1973); Brockett v. Jensen, 154 Conn. 228, 337 (1966); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402 (1988), aff’d, 211 Conn. 67 (1989). See also Bulger v. Lieberman, 39 Conn. App. 772, 773 (1995). 1404. Contract with motor vehicle department for obtaining records. Section 14-10 of the General Statutes was enacted in 1994 and imposed various obstacles for public access to records maintained by the Department of Motor Vehicles including personal presentment in Wethersfield with identification (juris number for attorneys). These obstacles, however, are not applicable “to registration, license information or driver history” furnished by the Department of Motor Vehicles pursuant to a contract entered into by the Commissioner “with any person, firm, labor union or non-profit organization who satisfies the Commissioner that the information is properly required in connection with the conduct of such entity’s business or activity.” The Commissioner of the Department of Motor Vehicles has interpreted this provision to extend to attorneys and law firms. Attorneys may request a contract pursuant to the statute from Sheila Salzarulo, Supervisor, Support Services Section, Department of Motor Vehicles, 60 State Street, Wethersfield, Connecticut 06161. The form for the “agreement for access to motor vehicle records” is included in the appendix, p. A147. 184
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