text:
    JAMES M. COADY ET AL. v. GREGORY MARTIN ET AL.
    (AC 20738)
    Spear, Mihalakos and Peters, Js.

      Argued May 29
    officially released September 25, 2001

      Charles D. Houlihan, Jr., for the appellants-appellees (plaintiffs).

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellees-appellants (named defendant et al.).
   Opinion

PETERS, J.

This case primarily concerns the enforceability of a written agreement between two entrepreneurs who decided to use the concept of “Ebbets Field” as a trademark and logo that might serve as a marketing device for a variety of projects, principally in the greater Hartford region. Whether such an agreement is enforceable depends upon whether its terms demonstrated an agreement, in law and in fact, on all essential issues in dispute. The trial court held that the agreement did not do so. We agree.

The plaintiffs, James Coady and Joanne Coady, filed a revised complaint charging the defendants, Gregory G. Martin, Thomas Heaney and Michael O’Keefe, with breach of fiduciary duty, breach of contract, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and fraud. The defendants responded with a denial, special defenses and a counterclaim. The court rendered a judgment in favor of the defendants. It concluded that the defendant Martin had no fiduciary duty to the plaintiff, James Coady, and that the agreement between the parties was unenforceable for lack of an essential term and for lack of consideration. It therefore held against the plaintiffs on their complaint and in favor of the defendant Martin’s request for injunctive relief to bar the plaintiffs from using the name “Ebbets Field.” The plaintiffs have appealed.

FACTUAL AND PROCEDURAL HISTORY

The relevant factual background for this litigation begins one year or more before the disputed agreement was signed in 1996 by the plaintiff James Coady and the defendant Martin. It is undisputed that, during the preagreement period, there were discussions among all the parties, with the exception of the plaintiff Joanne Coady, about possible development projects. Also, the defendant Martin filed the appropriate documentation with the secretary of the state to establish that he had formed a limited liability corporation under the name of Ebbets Field Ventures, LLC (company). Although many of the issues raised by the plaintiffs concerned rights in the company, the company was not named as a defendant.

The court found that, in 1996, the plaintiff James Coady, the defendant Martin and the company entered into a written membership and subscription agreement. Under that agreement, the plaintiff James Coady received a 50 percent interest in the company from the defendant Martin. The agreement acknowledged that, at “a later date,” the defendants O’Keefe and Heaney would each be issued a “Membership Interest [in the company] in a lesser proportion.” Prior to the agreement, the parties were unable to settle the precise percentage of the equity in the company to which these defendants were entitled because of their prior performance. Each of them had participated in discussions of the uses to which the Ebbets Field trademark and logo might be put.

The court made findings about the relationship between the company and the plaintiffs. Although the plaintiff Joanne Coady sent $15,700 to the Coady Capital Account at the company, she was never considered to be a part of the group that might invest in the company. She was neither a third party beneficiary nor an assignee of whatever interest the plaintiff James Coady might have had. Although the operating agreement filed with the secretary of the state stated methods for assigning the rights of any member in the company, “[t]hese requirements were never met by anyone.”

The plaintiff James Coady’s interest in the company similarly was not established. He “never owned any part of the [company] and he never lent it any money.” He never promised to put anything into the company, and never did so. Although the plaintiffs’ original complaint had been filed in August, 1997, “[a]s late as August, 1999, he denied that he owned any interest in the [company].” The court implicitly found the testimony of the plaintiff James Coady to be unpersuasive. Indeed, the trial court expressed its doubt about the reliability of the plaintiff James Coady’s testimony.

In light of these findings, the court concluded that the controversy between the parties was primarily based on the viability of the 1996 membership agreement between the plaintiff James Coady and the defendant Martin. The court held that this agreement was defective because of the unresolved dispute about “what the percentage of the ownership would be among the four parties mentioned in the [agreement.” Without resolving that issue, the parties had not come to “a meeting of the minds.” In addition, the court held that the agreement was unenforceable because of the absence of consideration to support it.

In light of its findings, the court did not address the plaintiffs’ claims of a CUTPA violation or of fraud. Although the court initially did not rule on the plaintiffs’ claim that the defendant Martin owed them a fiduciary duty that had not been fulfilled, after reargument, the court expressly found the absence of any fiduciary duty to the plaintiffs. Accordingly, the court rendered judgment in favor of the defendants on the plaintiffs’ complaint and enjoined the plaintiffs, in perpetuity, from using the Ebbets Field trademark and logo or near equivalents thereof.

The plaintiffs’ appeal from the judgment of the court raises four separate issues. They argue that the judgment should be set aside because the court (1) improperly failed to address their claim for relief for breach of the fiduciary duty that the defendant Martin owed to the plaintiff James Coady, (2) improperly held the membership agreement between the plaintiff James Coady and the defendant Martin to be unenforceable, (3) abused its discretion in failing to grant their motion for sanctions because of the late disclosure of a transcript of a tape recording and (4) improperly failed to enforce an offer for restitution that was contained in pleadings filed by the defendant Martin.

Our standard of review of the plaintiffs’ claims is well established. The court’s findings of fact are reversible only if they are clearly erroneous. State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997). The court’s conclusions of law are reversible only if they are legally and logically incorrect in light of the facts found. Id. The court’s discretionary rulings are reversible only if they manifest an abuse of the court’s discretion. State v. Cooper, 227 Conn. 417, 427, 630 A.2d 1043 (1993). Applying these principles to the circumstances of this case, we are not persuaded by any of the plaintiffs’ claims of impropriety.

FIDUCIARY DUTY

The plaintiffs claim that the judgment should be set aside because the court allegedly gave short shrift to their argument that the defendant Martin owed them a fiduciary duty regardless of the enforceability of the written agreement to which the plaintiff James Coady and the defendant Martin had subscribed in 1996. This argument is untenable.

It is inaccurate for the plaintiffs to assert that the judge did not rule on this count of their complaint. The memorandum of decision entitled “Re articulation, sanctions and reargument,” states categorically that “[t]he court cannot find that the defendants or any of them had any fiduciary obligation to [the] plaintiffs.” Contrary to the view espoused by the plaintiffs, the court’s finding about the nonexistence of a fiduciary obligation obviated the need to discuss a possible breach of that obligation. Although the plaintiffs asked the court to articulate its holding on other issues, they failed to ask for clarification on the issue of fiduciary duty.

It is inconsistent for the plaintiffs, on appeal, to claim a breach of fiduciary duty independently of the written agreement when, at trial, they took a diametrically opposite position. Paragraph nineteen of their complaint states: “Martin has breached his obligation to the Company and [to the] Plaintiff to operate the business of the Company in accordance with the fiduciary duties he assumed under the Amended Operating Agreement.” (Emphasis added.) After the court had announced its decision at the end of the trial, the plaintiffs filed a motion for reargument in which they again characterized the alleged fiduciary relationship as having been “based upon the written agreement.” (Emphasis added.)

Even if we were nonetheless to address the plaintiffs’ argument on its merits, the plaintiffs could not succeed. The plaintiffs’ appellate brief alleges that the plaintiff James Coady and the defendant Martin were engaged in a joint venture that imposed fiduciary obligations upon the defendant Martin. We disagree.

The plaintiffs may well be right about the law of joint ventures; Doe v. Yale University, 252 Conn. 641, 672-73, 748 A.2d 834 (2000); but they fail to point out any factual finding that would support the joint venture theory in this case. The court was not asked to find, and did not find, the existence of a joint venture. Although the plaintiffs have cited evidence that would support their present argument, that does not suffice. This court has no authority to find facts to supplement the record at trial. Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.10 (a), p. 308.

For the procedural and substantive reasons previously discussed, the trial court properly rejected the plaintiffs’ claim of breach of fiduciary duty. Its factual findings were not clearly erroneous and its legal conclusions were sound.

THE MEMBERSHIP AGREEMENT

The plaintiffs claim that the court improperly concluded that the membership agreement was unenforceable for lack of an essential term. Focusing on the language of the agreement and the oral expressions of the parties, the court held that the absence of a provision delineating the percentage of ownership of all of the parties in the company rendered the agreement fatally incomplete. We agree with the court.

“[N]umerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement. . . . [A]n agreement is too indefinite to be enforceable until the parties have decided the amount of a contemplated loan ... or the configuration of a subordination agreement.” (Citation omitted.) Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 845, 779 A.2d 174 (2001). Whether a term is essential turns “on the particular circumstances of each case.” Id.

The particular circumstances of this case include the court’s finding that, when the plaintiff James Coady and the defendant Martin were negotiating the terms of the membership agreement, they had considered, but had been unable to agree on, the distribution of rights in the company. They understood and agreed, however, that the defendants Heaney and O’Keefe were entitled to participate in the company. The agreement incorporates that understanding in its text. It says that “a Membership Interest in a lesser proportion will have to be issued to Michael O’Keefe and Tom Heaney at a later date . . . .” (Emphasis added.)

The plaintiffs argue that, as a matter of law, the dis-positive language is “at a later date.” In their view, an acknowledgement of problems to be resolved in the future does not undermine the present enforceability of the agreement as it stands. The language about the rights of the defendants O’Keefe and Heaney is, in their words, “precatory.” They maintain that the agreement is enforceable because it unambiguously addresses the essential terms of the rights of the persons who were its signatories. According to the plaintiffs, these terms of the agreement are sufficiently certain to provide “a basis for determining the existence of a breach and for giving an appropriate remedy.” 1 Restatement (Second), Contracts § 33 (2), p. 92 (1981).

The defendants, to the contrary, focus on the language “will have to be issued” as indicative of the parties’ failure to resolve a present controversy about the structure of the company. They contend that this language states a present commitment that cannot be overlooked even though its implementation is postponed to “a later date.”

Although the terms of the agreement could have been clearer, we agree with the court that the defendants’ position is the more plausible one. Having acknowledged the present participatory rights of the defendants O’Keefe and Heaney, the agreement could not and did not postpone the vesting of their rights to a future time. True, their participation rights were then not enforceable because of the lack of agreement about what percentage their interests in the company would be. Nonetheless, their rights cast an unmistakable shadow on the enforceability of an agreement that purported to distribute all of the interests in the company to the plaintiff James Coady and the defendant Martin. A comparable case is L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 537-38, 732 A.2d 181, cert, denied, 250 Conn. 901, 734 A.2d 984 (1999), in which a failure to agree on the terms of a subordination agreement made unenforceable an otherwise comprehensive and unambiguous agreement about the terms of a mortgage. See also 1 S. Williston, Contracts (4th Ed. Lord 1990) § 4:28, pp. 602-608. These authorities persuade us that the membership agreement is unenforceable because it did not delineate the extent of the interests of the defendants O’Keefe and Heaney and therefore lacked an essential term.

SANCTIONS

The plaintiffs claim that the court abused its discretion in declining to sanction the defendant Martin for his late disclosure of a transcript of a tape recording. The court addressed this claim in its memorandum of decision responding to the plaintiffs’ motion for articulation.

The court’s articulation stated that the plaintiffs’ “motion was filed after the conclusion of trial, and it asserts that [the] defendant Martin failed to disclose the existence of a tape recording of a conversation by and between present defendant Heaney and [the] plaintiff [James Coady].” Although this plaintiff saw a transcript of the recording on August 31, 1999, he did not move for sanctions until October 14, 1999. “He requested no delay in trial nor did he offer any evidence of surprise or unfairness in regard to the timing of the disclosure.” The court went on to conclude, with respect to the issue of sanctions, that it could not “find either that [the] defendants did deliberately withhold any discoverable material from [the] plaintiffs, that their admission into evidence was of the slightest importance to the proof of the action or its defense or that plaintiff was in any way injured by that admission.”

The plaintiffs acknowledge that they have an uphill battle to reverse the denial of their motion for sanctions. Their motion for sanctions can be overturned on appeal only if we are persuaded that the court abused its discretion. Berry v. Loiseau, 223 Conn. 786, 801, 614 A.2d 414 (1992).

The plaintiffs make the following points. They allege that (1) the transcript should have been turned over in response to their requests for production addressed to the defendant Martin, (2) the defendant Martin had access to the tape and the transcript even though the tape was owned by the defendant Heaney, (3) the defendant Martin had a copy of the transcript well before trial and (4) the transcript shows that the defendants Martin and Heaney did not ask questions to which the plaintiff James Coady could have replied affirmatively.

On the basis of these allegations, they claim that each of the court’s reasons for denial of their sanctions motion was unfounded. The failure to disclose the tape or the transcript could not have been anything other than deliberate because the defendant Martin never presented factual support for the court’s contrary conclusion. The “secret evidence” was significant support for the court’s determination that the plaintiff James Coady had not fully disclosed his financial situation to the defendant Martin and that he subsequently used improper means to broadcast his dismay after his relationship with them had come to an end.

Whatever their intrinsic validity might be, the plaintiffs’ arguments are unpersuasive because they read as if they never had access to the transcript at any relevant time during the trial. The court’s finding to the contrary is virtually unchallenged on appeal. Indeed, at trial, the plaintiffs did not make a sufficient evidentiary showing to dispute the court’s further factual finding that belated access to the transcript caused them no injury.

In the absence of a showing of prejudice, we conclude that the court did not abuse its discretion in denying the plaintiffs’ motion for sanctions. Even if the defendant Martin’s nondisclosure was wilful, the court was not required to impose sanctions. See Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 164, 645 A.2d 505 (1994) (wilful failure to appear at deposition); see also Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 39-40, 404 A.2d 889 (1978) (wilful failure to comply with discovery orders).

RESTITUTION

The plaintiffs’ final claim is that, in the court’s final memorandum of decision, the court improperly failed to order restitution from the defendants to the plaintiff Joanne Coady for the $15,700 that she sent to the company. They do not challenge the validity of the court’s holding that the company, which was not a defendant, was the entity that was legally obligated to settle this account. They argue instead that the defendant Martin had assumed that obligation because, in his sixth special defense to the plaintiffs’ complaint, he had “offered to refund to the plaintiff any monies invested in said company, but the plaintiff has failed and neglected to accept same and, hence, to mitigate his damages.”

This claim need not long detain us. The plaintiffs do not cite any authority to support their alleged entitlement to relief. They do not allege that they ever accepted the refund offer. Under these circumstances, we conclude that the court properly denied the plaintiffs’ claim for restitution.

The judgment is affirmed.

In this opinion the other judges concurred.

       For many years, Ebbets Field was the home ballpark for the Brooklyn Dodgers. The Dodgers were members of the National Baseball League.

       Although only James Coady and Gregory Martin were parties originally, the court permitted the others to intervene or to be cited in as indispensable parties.

       Among' the projects that were contemplated by the parties was aproposal to bring a minor league baseball team to Hartford.

       Even though not specifically disputed, the testimony was not binding on the court. Gould v. Hall, 64 Conn. App. 45, 52, 779 A.2d 208 (2001).

       The court observed that the plaintiff James Coady testified at trial that he was a resident of Florida, although the complaint contained no reference to Florida. He was not always candid with the defendant Martin about his financial situation, even though by 1995, “he had no net worth.” When the present controversy arose, he threatened to “tank the company” and tried unsuccessfully to oust the defendant Martin from the company. He notified the defendant Martin’s employer of the pending action and threatened to notify a major league baseball official unless the defendant Martin agreed to resolve their differences in little more than one week’s time.

       Although the court initially held the defendant Martin accountable to the plaintiff Joanne Coady for the $15,700 that she had paid to the company, it subsequently granted the defendant Martin’s motion for articulation and modified its decision to grant any relief to her because the company was not a party to this litigation. Although this ruling was made more than four months after the judgment had been rendered, no one has raised any procedural objection to the validity of the ruling. See Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999).

       The defendant Michael O’Keefe has not participated in this appeal.

       The court also held that the agreement was unenforceable for lack of consideration. That holding presumably was based upon its finding that the plaintiff James Coady had provided neither moneys nor services to the company and had not promised to do so. The court did not, however, allude to the statement of consideration contained in the agreement itself. Because we uphold the court’s conclusion that the agreement is unenforceable for lack of an essential term, we need not inquire further into this issue. Correlatively, we need not address the issues raised by the plaintiffs in points four and five of their appellate brief.

       “For good and valuable consideration duly received and acknowledged, it is hereby agreed ... (4) Coady and Martin acknowledge that a Membership Interest in a lesser proportion will have to be issued to Michael O’Keefe and Tom Heaney at a later date . . . .”

       The plaintiffs also maintain that the agreement contains all the essential terms because it confers no enforceable rights on the defendants O’Keefe and Heaney. Whether these defendants may be third party beneficiaries of the agreement between the plaintiff James Coady and the defendant Martin is an issue that should have been raised at trial. The plaintiffs do not indicate that they did so. The court did not rule thereon in any of its memoranda of decision. It is too late to raise this issue now.

       The plaintiffs also maintain that the court, apart from its construction of the terms of the agreement, made a clearly erroneous finding of fact that there had been no meeting of the minds among the plaintiff James Coady, the defendant Martin and the company. This argument is untenable with respect to the company because it was not a party to the litigation and the court made no finding with respect to its mindset. It is untenable with respect to Martin because it relies on evidence presented at trial rather than on findings made by the court. Several of the court’s findings expressly contradict the plaintiffs’ assertions about the significance of the contributions that the plaintiff James Coady allegedly had made to the company. As one example, the plaintiffs allege in their brief that James Coady provided more financing than the others and, through his wife, would continue to do so. The court found, however, that when the plaintiff Joanne Coady provided the funding, she was acting for herself and not as the assignee of the plaintiff James Coady. It further found that, although the defendant Martin had put into the bargain his Ebbets Field trademark rights, “James [Coady] did not promise to put in anything and put in nothing.” In short, the plaintiffs have not made a persuasive case for their argument that the court’s factual finding was clearly erroneous.

       Our standard of review would be different if the defendant Martin was appealing from an order of the trial court imposing sanctions. Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    GREGORY FIELDS v. WILFREDO GIRON
    (AC 20680)
    Schaller, Spear and Daly, Js.

      Argued May 10
    officially released September 25, 2001

      Guy P. Soares, with whom was Salvatore C. DePiano, for the appellant (plaintiff).

      Steven J. Barber, with whom, on the brief, was Constance L. Epstein, for the appellee (defendant).
   Opinion

DALY, J.

The plaintiff appeals from the judgment rendered by the trial court after the granting of the defendant’s motion to strike the plaintiffs complaint. On appeal, the plaintiff claims that the court improperly determined that his cause of action did not fall within the purview of the motor vehicle exception to the workers’ compensation exclusivity rule. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this appeal. The plaintiff, Gregory Fields, and the defendant, Wilfredo Giron, are both employees of Alpine, The Care of Trees, Inc. On or about February 11,1997, the defendant was operating a company truck on property located at 21 Fox Run Lane in Greenwich. On that date, the defendant tied a rope to a fallen tree, fed the rope through a block and tackle, and then attached the rope to the back of the company truck. He then operated the company truck creating tension on the rope. The rope broke, and the block and tackle catapulted toward the plaintiff, striking him and causing him to suffer injuries.

In his amended complaint, the plaintiff alleged that the defendant negligently operated the truck. On June 3, 1999, the defendant filed a motion to strike the plaintiffs complaint, asserting that an employee cannot maintain a claim against a fellow employee and that workers’ compensation was the plaintiffs exclusive remedy pursuant to General Statutes § 31-284 (a), the exclusivity provision of the Workers’ Compensation Act. The plaintiff objected to the motion to strike, claiming that, under General Statutes § 31-293a, an employee may assert a tort claim against a fellow employee when the claim involves the fellow employee’s negligent operation of a motor vehicle. The defendant’s motion to strike was granted, and judgment was later rendered in favor of the defendant on March 28,2000. The plaintiff subsequently filed this appeal.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to strike. Specifically, he claims that the court improperly analyzed Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), and Ferreira v. Pisaturo, 41 Conn. Sup. 326, 574 A.2d 1324 (1989), affd, 215 Conn. 55, 573 A.2d 1216 (1990), the two cases that the court relied on in its memorandum of decision in support of its granting of the defendant’s motion to strike. We disagree.

The standard of review for granting a motion to strike is well settled. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary. ... In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Eskin v. Castiglia, 253 Conn. 516, 522-23, 753 A.2d 927 (2000).” (Internal quotation marks omitted.) Melanson v. West Hartford, 61 Conn. App. 683, 687, 767 A.2d 764, cert, denied, 256 Conn. 904, 772 A.2d 595 (2001).

In Dias v. Adams, supra, 189 Conn. 359, our Supreme Court examined the legislative history regarding § 31-293a and distinguished “ ‘simple negligence on the job’ from negligence in the operation of a motor vehicle.” “Although the legislative history of § 3 l-293a is not especially revealing, there is some evidence that the intention was to distinguish ‘simple negligence on the job’ from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employment,s it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct, relationship to the hazards of the employment.” Id., 359-60.

In Ferreira v. Pisaturo, supra, 41 Conn. Sup. 351-52, the court concluded that “[t]he plaintiffs decedent, on the day in question, where he was working, subjected himself to the ‘special hazards of the workplace.’ The risk of injury he faced was not that risk of a motor vehicle accident faced by the general public as a ‘common danger.’ Clearly, the accident here had a ‘distinct relationship to the hazards of employment. . . . The general public is not exposed to the risk entailed by working in an open trench in close proximity to a piece of heavy construction equipment compacting earth in a portion of that trench. The plaintiffs decedent was not facing the hazards encountered by the general public as motorists or even pedestrians walking on or alongside a highway open to the public.” (Citation omitted.)

Similarly, in this case, the plaintiff subjected himself to the “special hazards of the workplace,” and the risk of injury he faced was not that risk of a motor vehicle accident faced by the general public as a “common danger.” The general public is not exposed to the risk entailed in removing a fallen tree by using a rope that is fed through a block and tackle and then attached to a truck. This accident clearly had a “distinct relationship to the hazards of employment.” This accident involved a special hazard of the workplace and does not fall within the purview of the motor vehicle exception to the Workers’ Compensation Act. Because our Supreme Court has found that the legislature intended to distinguish between simple negligence on the job and negligence in the operation of a motor vehicle when applying § 31-293a, we conclude that the court properly granted the defendant’s motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-284 (a) provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter . . . .”

       General Statutes § 31-293a provides in relevant part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . .

       12 H.R. Proe., Pt. 9, 1967 Sess., p. 4035, remarks of Representative Paul Pawlak: “Section 5. This section stops third party suits against fellow employees since such employee usually is unable to meet any judgement involving serious injuries. However, the section specifically permits suits against fellow employees where the injury or death was the result of wilful or malicious wrong by such fellow employee or involves the operation of a motor vehicle. We are here trying to make sure that a fellow employee cannot ordinarily be sued for simple negligence on the job, but we do not believe that he should be protected against wilful or malicious wrong, nor do we believe he should be protected if the employee is injured as a result of a motor vehicle accident.”


author: FLYNN, J. LANDAU, J.,

text:
    NORMA J. RICHMOND v. STEPHEN J. EBINGER
    (AC 20657)
    Lavery, C. J., and Landau and Flynn, Js.
    Argued March 27
    officially released September 25, 2001

      Christopher Carrozzella, for the appellant (plaintiff).

      Louise C. LaMontagne, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Norma J. Richmond, appeals from the judgment of the trial court rendered following the denial of her motion to set aside the verdict and the denial of her motion for additur. The principal dis-positive issue in this appeal is whether the court improperly refused to charge the jury as to the use of medical reports at trial, as requested by the plaintiff, and whether the court, by charging as it did, violated General Statutes §§ 52-174 (b) and 52-216c. We reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff brought a negligence action seeking to recover damages for personal injuries arising from a March, 1995 motor vehicle accident with the defendant, Stephen J. Ebinger. The plaintiff alleged that the defendant was driving his vehicle directly ahead of her vehicle, with his left turn signal activated, when he suddenly turned to the right and collided with the plaintiffs vehicle. The plaintiff further alleged that she suffered physical injuries as a result of the collision. In a special defense, the defendant claimed that the plaintiffs comparative negligence contributed to her injuries.

The case was tried to a jury. Before the conclusion of the trial, the plaintiff submitted a request to charge grounded on § 52-174 (b) concerning the use of written medical reports in lieu of testimony from physicians. The jury returned a verdict in favor of the plaintiff and apportioned the negligence equally between the plaintiff and the defendant. The jury awarded the plaintiff $6300, including $4700 for economic damages and $1600 for noneconomic damages.

On January 26, 2000, the plaintiff filed a motion for additur, alleging that the jury’s award of $1600 for non-economic damages was manifestly inadequate. The court denied the motion, ruling that “although the verdict was low, certainly lower than the court would have awarded, it is not so low as to satisfy the standard for an additur.”

The plaintiff also filed a motion to set aside the verdict on the following grounds: (1) the court’s charge on the issue of the plaintiffs preexisting neck condition was incomplete and, thus, contrary to law; (2) the court confused the jury by failing to distinguish between the aggravation of a preexisting condition and a preexisting disability; (3) the court improperly charged the jury on contributory (comparative) negligence and the plaintiffs duty to use reasonable care; (4) the court improperly charged the jury regarding the use of medical reports and records at trial; and (5) the court improperly failed to charge on the defendant’s failure to maintain control of a motor vehicle. The court denied the motion, and this appeal followed.

We first review certain legal principles that govern our review. We have stated that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request [however] will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 234, 733 A.2d 156 (1999).

“A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” (Internal quotation marks omitted.) Sleavin v. Greenwich Gynecology & Obstetrics, P.C., 6 Conn. App. 340, 343, 505 A.2d 436, cert, denied, 199 Conn. 807, 508 A.2d 32 (1986). “The test is whether the charge as a whole fairly presented the case to the jury so that no injustice was done.” (Internal quotation marks omitted.) Id., 343-44. “In reviewing a challenge to jury instructions, we must examine the charge in its entirety. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Emphasis added; internal quotation marks omitted.) State v. Stevenson, 53 Conn. App. 551, 573, 733 A.2d 253, cert, denied, 250 Conn. 917, 734 A.2d 990 (1999).

The plaintiff claims that the court improperly refused to charge the jury on the use of medical reports at trial, as she requested, and that the court, by charging as it did, violated §§ 52-174 (b) and 52-216c. We agree.

In this case, the plaintiff introduced into evidence numerous medical records, in lieu of testimony, from her treating physicians. She also submitted a written request to charge as follows: “In this case, the plaintiff has introduced into evidence numerous medical records from her treating physicians. By authority of state law, medical records may be introduced by any party without the requirement that the treating physician come to court to present this information by live testimony. There is nothing wrong with doing that. These reports are admitted into evidence as a business entry, which is one of the many exceptions to the hearsay rule, and it is presumed that such medical reports were made in the ordinary course of business. The plaintiff is not required to call as a witness all of the doctors who wrote these reports and this should not be held against the plaintiff that she did not do so. General Statutes § 52-174 (b).”

The court did not charge the jury in accordance with the plaintiffs request. Instead, it charged the jury as follows: “As you’ve seen, introducing medical reports, instead of . . . testimony is permitted . . . testimony by the doctor is not always required. No matter how certain any particular witness, including an expert may be, in his or her opinion, however, that opinion is subject to your review. It is, in no way, binding on you. No witness, including an expert witness, can decide this case for you. In weighing and considering the evidence of expert witnesses, you’re to apply the same rules that you apply to any witness insofar as it relates to the witness’ interest, bias or prejudice, partiality toward one party or against the other, frankness, and candor and so forth. Although these things, obviously, can be difficult to determine from a piece of paper rather than a .. . witness testifying.” (Emphasis added.) The plaintiff properly took exception to this portion of the charge, preserving the issue for appellate review.

We first review § 52-216c as it applies to the failure to call a witness at trial. Section 52-216c provides in relevant part: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. ...”

Section 52-216c must be read together with § 52-174 (b), which provides in relevant part: “In all actions for the recovery of damages for personal injuries . . . pending on October 1, 1977, or brought thereafter . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician . . . shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician . . . .” (Emphasis added.)

The purpose of § 52-174 (b) was to expedite and streamline the trial of personal injury cases by allowing the use of written reports from medical practitioners in lieu of their testimony. The General Assembly recognized that it is not always possible to obtain testimony without undue trial delay because of conflicting commitments that physicians and other treating professionals have to their patients. Because the nonoffering party has the right to call the medical expert to the witness stand if he or she wants, the rights to cross-examination are protected. No adverse inference is permitted, however, so that the use of the statute is not discouraged.

Here, the court did not read the pertinent portions of either statute or otherwise instruct the jury that the use of signed written reports and bills in lieu of the physicians’ testimony could not give rise to an adverse inference or be held against the plaintiff, as the plaintiff properly requested. The court did choose to comment, however, that judging a witness’ interest, bias, prejudice, partiality, frankness and candor “can be difficult to determine from a piece of paper rather than a . . . witness testifying.” We agree with the plaintiff that the likely effect of that last comment, when coupled with the failure to instruct against adverse inferences as to the two treating physicians whose medical reports were admitted into evidence in her behalf, invited the jury to do precisely what the statutes were designed to prohibit, namely, to draw a negative inference against the party relying on such written reports. Thus, we find the court’s charge to be improper in this case.

Our inquiry does not end with our conclusion that the charge was improper. We must next determine whether the improper instruction was harmful because it would have been likely to affect the juiy’s verdict. Remington v. Aetna Casualty & Surety Co., 240 Conn. 309, 316, 692 A.2d 399 (1997); Blancato v. Randino, 33 Conn. App. 44, 49, 632 A.2d 1144, cert, denied, 228 Conn. 916, 636 A.2d 846 (1993). A careful review of the charge to the jury reveals that the court’s remark invited an adverse inference. That is particularly so in light of the judge’s statement that it might be more difficult to evaluate the experts’ opinions because they were on pieces of paper, and the fact that the entire medical evidence as to permanency of the injury came in through those reports. Since we presume that the jury followed the court’s instructions; State v. Rivera, 61 Conn. App. 763, 773, 765 A.2d 1240, cert, denied, 256 Conn. 901, 772 A.2d 599 (2001); State v. Mills, 57 Conn. App. 202, 212, 748 A.2d 318, cert, denied, 253 Conn. 914, 915, 754 A.2d 163 (2000); we conclude that the plaintiff has suffered an injustice.

Because the comment that the trial judge made about the difficulty of the use of paper reports related to the credit to be given witnesses, it is worth noting that the plaintiffs physicians and the physician retained by the defendant, all of whose opinions were before the jury in the form of signed, written reports, do not dispute the nature of the plaintiffs injuries or that those injuries resulted from the collision. The only difference in the medical reports relates to the extent of the plaintiffs disabilities. According to the three medical reports, the plaintiff, at the very least, has a 4 or 5 percent disability to her back and a 3 percent disability to her neck. Additionally, the plaintiff had at the time of trial a life expectancy of thirty-four years. Because the jury awarded only $1600 for noneconomic damages, including pain and suffering, we cannot find that the court’s failure to instruct against adverse inferences was harmless. Because our resolution of the issue concerning the court’s charge is dispositive of the plaintiffs appeal, we do not address the plaintiffs other claims. There are cases, and this is one, where improper instructions as to damages should be reviewed because the jury rendered a verdict for the plaintiff, not for the defendant. Because it reached the issue of damages, the jury could not have reached its verdict by any means other than one affected by improper jury instructions, the likely effect of which was to diminish the award to the plaintiff.

The judgment is reversed and the case is remanded for a new trial.

In this opinion LAVERY, C. J., concurred.

LANDAU, J.,

dissenting. I respectfully dissent from the majority opinion because I believe that the size of the verdict cannot be used to determine whether the claimed improper jury instruction was prejudicial to the plaintiff.

The following procedural fact is critical to a resolution of the plaintiffs claim, which is essentially that the jury did not award her enough damages. The foreperson completed the jury form, indicating that the parties were equally responsible for the accident and awarding the plaintiff $4700 for economic damages and $1600 for noneconomic damages. The total verdict was $6300. No interrogatories were submitted to the jury to elucidate its verdict. The jury’s awards with respect to economic and noneconomic damages are therefore the result of a general verdict. See Barrows v. J.C. Penney Co., 58 Conn. App. 225, 229, 753 A.2d 404, cert, denied, 254 Conn. 925, 761 A.2d 751 (2000).

“Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside. Marchetti v. Ramirez, 40 Conn. App. 740, 746, 673 A.2d 567 (1996), aff d, 240 Conn. 49, 688 A.2d 1325 (1997). The rendering of a general verdict coupled with the absence of interrogatories, [makes] it impossible for the trial court or this court to determine what factors the jury considered in making its award. Id. We cannot speculate as to how the jury reached its figure. Caruso v. Quickie Cab Co., 48 Conn. App. 459, 462, 709 A.2d 1154 (1998).” (Internal quotation marks omitted.) Barrows v. J.C. Penney Co., supra, 58 Conn. App. 229.

Here, the absence of any explanation of the verdict clouds the basis of the jury’s economic damages award, which is only a fraction of the medical special damages that the plaintiff had claimed, as well as its noneconomic damages award. The plaintiffs argument before this court is that, in view of the court’s charge, the jury drew an adverse inference about the opinions of various medical experts because the experts did not testify. In particular, the plaintiff scrutinizes the permanent, partial disability ratings assigned by the various experts and makes assumptions about the verdict in that regard. The plaintiff, however, has not demonstrated how the jury viewed the expert opinions. In fact, there is no way to parse the jury’s verdict between past and future medical expenses, let alone a permanent, partial disability to any part of her body. “The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict.” (Internal quotation marks omitted.) Kunst v. Vitale, 42 Conn. App. 528, 535 n.4, 680 A.2d 339 (1996).

“The amount of a damage award is a matter peculiarly within the province of the trier of fact . . . .” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 183-84, 646 A.2d 195 (1994). The court should set aside a verdict where “circumstances justify a suspicion that the jury was influenced by prejudice, corruption or partiality.” Rejouis v. Greenwich Taxi, Inc., 57 Conn. App. 778, 787, 750 A.2d 501, cert, denied, 254 Conn. 906, 755 A.2d 882 (2000). “The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

There is nothing shocking about the size of the verdict here. Furthermore, appellate courts have always ascribed great weight to a trial court’s decision not to set aside the verdict or to award an additur. Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 476, 760 A.2d 117 (2000), affd, 257 Conn. 359, 777 A.2d 681 (2001). In denying the plaintiffs motion for additur, the court stated that the verdict was not low enough to satisfy the standard for additur, although it would have awarded the plaintiff more damages. The court’s gratuitous comment with respect to the size of the verdict it would have awarded is meaningless in view of the long-standing rule that the court does not sit as the seventh juror. See Purzycki v. Fairfield, 44 Conn. App. 359, 362, 689 A.2d 504 (1997), rev’d on other grounds, 244 Conn. 101, 708 A.2d 937 (1998). “Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., supra, 478.

It is beyond question that the jury is the arbiter of fact and credibility. Stuart v. Stuttig, 63 Conn. App. 222, 226, 772 A.2d 778 (2001). At trial in this case, the parties contested the plaintiffs injuries, their proximate cause and their severity. The jury had before it the opinions of all of the medical expert witnesses. It was for the jury to believe all, some or none of their opinions. Pickles v. Goldberg, 38 Conn. App. 322, 325, 660 A.2d 374 (1995). The plaintiff attempted to convince the jury that she sustained significant, permanent injuries as a result of the motor vehicle accident with the defendant. On the other hand, the defendant, in view of his belief that the accident was relatively minor, attempted to convince the jury that the plaintiff exaggerated her injuries and sought more treatment than was necessary. There were many factors beyond the opinions of the experts that the jury had to consider, including the testimony of the parties, demonstrative evidence and the arguments of counsel. No one outside the jury knows how or why it rendered its verdict. See Pisel v. Stamford Hospital, 180 Conn. 314, 344, 430 A.2d 1 (1980). Because the verdict fell within the necessarily uncertain limits of fair, just and reasonable damages, this court should not sit as a seventh juror and reverse the judgment.

For these reasons, I would affirm the judgment.

       The plaintiff also claims that the court (1) committed reversible error by including in its charge an illustrative example that confused and misled the jury, and (2) abused its discretion in denying her motion for additur.

       We respectfully disagree with the view expressed in the dissent that the general verdict rule applies in this case and, therefore, any claimed error is not reviewable. First, the jury did not render a general verdict in the present case. The jury made separate special findings on the verdict form itself, including that (1) the plaintiff was 50 percent negligent, (2) the defendant was 50 percent negligent, (3) $4700 constituted proper economic damages and (4) $1600 constituted proper noneconomic damages.
      In Caruso v. Quickie Cab Co., 48 Conn. App. 459, 709 A.2d 1154 (1998), which the dissent cites, there was a general verdict, but only because the parties stipulated that the jury award would be a lump sum without a breakdown as to economic and noneconomic damages. Second, even if the special findings were deemed to constitute a general verdict, this case does not fit into any of the five scenarios, as set forth in Curry v. Burns, 225 Conn. 782, 801, 626 A.2d 719 (1993), in which the rule applies. In that case, our Supreme Court limited the “application of the rule to the following five scenarios: (1) denial of separate counts of a complaint; (2) denial of sepárate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a special defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id.
      Of those, only the fourth scenario provides a possible fit because the defendant denied the allegations of negligence in the plaintiffs complaint and pleaded the special defense of contributory negligence. Analysis reveals, however, that even as to the fourth scenario, in determining causal negligence, the jury was not making the factually and legally distinct judgment that Curry requires for the rule to apply. “[T]he application of the general verdict rule . . . does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial. . . . [I]t is the distinctness of the defenses raised, and not the form of the pleading, that is the decisive test governing the applicability of the general verdict rule.” (Citation omitted; internal quotation marks omitted.) Id., 787-88. Furthermore, because the jury found both that the defendant was negligent as pleaded in the complaint and that the plaintiff was not barred from recovery under the special defense because she was not more than 50 percent causally negligent in bringing about her own injuries and damages, application of the rule would not provide an error free alternate route to sustaining the verdict where a second route in the pleadings had been marred by error.

         Both of the plaintiffs physicians, in their written reports, assigned a 5 percent permanent, partial disability to the plaintiffs back. The physician retained by the defendant made an independent report, assigning a 7 percent permanent, partial disability to the plaintiff’s back, 3 percent due to preexisting degenerative changes and 4 percent due to the 1995 accident.
      As for the extent of injury to the plaintiff’s neck, one of the plaintiffs physicians assigned a 10 percent permanent, partial disability due to a 1993 accident. Of the two physicians who examined the plaintiffs neck following the 1995 accident, one physician assigned a 5 percent disability, and the other assigned a 7 percent to 10 percent disability. The physician for the defendant assigned an additional 3 percent permanent, partial disability of her neck.

       As previously stated, the court itself noted, in its denial of the plaintiffs motion for additur, that “the verdict was low, certainly lower than the court would have awarded . . . .”

       We are able to deduce that the jury awarded noneconomic damages for pain because it awarded the entire portion for which the defendant was proportionately responsible as to the bill of David Clukey, a chiropractor who can only treat pain, and the jury could only have done so because it found that the defendant’s negligence caused pain that the plaintiff endured and for which she needed to be treated.

      I lake no position as to the correctness of the court’s instruction that '‘[i]n weighing and considering the evidence of expert witnesses, you’re to apply the same rules that you apply to any witness insofar as it relates to the witness’ interest, bias or prejudice, partiality toward one party or against the other, frankness, and candor and so forth. Although these things, obviously, can be difficult to determine from a piece of paper rather than a . . . witness testifying.” In this situation, however, I note that the instruction applied equally to the opinions of both the plaintiffs and the defendant’s medical experts.

       The plaintiff submitted evidence that her medical special damages exceeded $12,000.