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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.




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