author: LANDAU, J.

text:
    ARTHUR FIELD v. JAMES M. KEARNS
    (14689)
    Landau, Schaller and Hennessy, Js.

      Argued March 22
    officially released September 24, 1996

      Michael W. Lyons, with whom, on the brief, was Arthur M. Field, for the appellant (plaintiff).

      Julie Harris, for the appellee (defendant).

      Martin B. Margulies and Martha Stone filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
   LANDAU, J.

This is an appeal by the plaintiff, Arthur Field, from the judgment of the trial court granting the motion by the defendant, James M. Kearns, for summary judgment as to all counts of a seven count complaint and denying the plaintiffs cross motion for partial summary judgment.

On appeal, the plaintiff claims that the trial court improperly determined that (1) bar grievants are entitled to absolute immunity from claims of abuse of process and vexatious litigation as alleged in the first, second, and third counts of the complaint, (2) the defendant was entitled to judgment on the fourth and seventh counts of the complaint because he owed no duty to the plaintiff under negligence law and under the provisions of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110a et seq., and (3) the defendant was entitled to judgment on the fifth and sixth counts involving publication of a earlier complaint filed by the defendant. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff is an attorney who represented Wendy Wirtz in 1989 in a closing on the purchase of a house. In 1991, Wirtz became involved in a foreclosure action involving the same real estate. In February, 1992, Wirtz retained the defendant, also an attorney, to represent her in a malpractice lawsuit against the plaintiff. On February 4, 1992, the defendant requested from the plaintiff, in writing, that the plaintiff notify his professional malpractice insurance carrier of the lawsuit. Thereafter, a correspondence ensued between the two attorneys that could most charitably be described as unpleasant. The plaintiff declined to notify his insurance carrier and refused to furnish any information regarding his malpractice carrier.

In addition to the malpractice lawsuit, the defendant, on April 27, 1992, also filed a complaint against the plaintiff with the statewide grievance committee (committee) alleging that the plaintiff obstructed the judicial process by failing to appear in the lawsuit and by failing to confirm that his malpractice carrier had been notified of the existence of the claim. The plaintiff responded to the subsequent inquiry of the local panel of the committee by furnishing a copy of the declarations page of his professional liability policy. On June 17, 1992, the defendant sent a copy of the complaint in the new civil action to the insurance carrier’s claims department.

In an amended complaint filed February 3, 1993, the plaintiff instituted the underlying action that culminated in this appeal. In the complaint, the plaintiff alleges that the filing and pursuit of the grievance by the defendant constituted an abuse of process (count one); that the failure of the defendant to withdraw the grievance after the first lawsuit was withdrawn was also an abuse of process (count two); that the defendant’s filing of, pursuit of, and failure to withdraw the grievance constituted vexatious litigation (count three); that the preparation and pursuit of the pending lawsuit filed on behalf of Wirtz constituted negligence on the part of the defendant (count four); that, by mailing copies of the civil and grievance complaints against the plaintiff to the plaintiffs malpractice insurance carrier, the defendant tortiously interfered with the plaintiffs business relationship with the carrier (count five); that the publishing of the civil and grievance complaints constituted libel (count six); and that the defendant’s actions violated the provisions of CUTPA (count seven).

After unsuccessfully moving to strike all counts of the complaint, the defendant filed an answer denying the allegations in the complaint and asserting three special defenses in which he claimed that he (1) “has an absolute privilege against any liability arising out [of his] complaint . . . [filed] with the [committee],” (2) has “absolute immunity against liability arising out [of his] complaint . . . [filed] with the [committee] and for representations made in the course of judicial proceedings” and (3) “has a conditional privilege as to matters set forth in the complaint.” The defendant filed a motion for summary judgment and the plaintiff filed an objection. The plaintiff also filed a motion for summary judgment as to liability.

The trial court granted the defendant’s motion for summary judgment and denied the plaintiffs motion for partial summary judgment. The court determined that “the public policy of protecting the courts and the public from unethical and unprofessional attorneys is so strong that there is absolute immunity for the complainant in filing or otherwise causing the institution of attorney disciplinary proceedings.” Having found that the theory of absolute immunity applies to the defendant, the court ruled that the defendant was entitled to summary judgment on the first, second and third counts of the amended complaint. The court further opined that the “content of statements in civil actions is likewise privileged,” and granted summary judgment “as a matter of law” as to the sixth count. As to the fourth and seventh counts, because the plaintiff “failed to allege, let alone prove by any competent evidence . . . that [the defendant] owed any duty to [him],” the court ruled that those counts also had to fall casualty to the motion for summary judgment. Last, as to the fifth count, the court ruled that summary judgment was appropriate because the plaintiff produced no evidence of “any harm to his business relationship with his carrier or anyone else as a result of [the defendant’s] actions.” This appeal follows.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether aparty would be entitled to a directed verdict on the same facts. . . . Trotta v. Branford, supra, 410.” (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).

I

The plaintiff first claims that the trial court improperly determined that bar grievants are entitled to absolute immunity for the content of statements made during a judicial or quasi-judicial proceeding. The issue of whether bar grievants are entitled to absolute immunity for statements made to the committee, pursuant to the teachings of Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986), and its progeny, is a question of first impression in Connecticut. We conclude that absolute immunity does exist.

A

In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein. Id., 245-46. “The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. ... It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character. [W.] Prosser & [W.] Keeton, Torts (5th Ed. [1984]) § 114, pp. 818-19.” (Internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 246.

The function of the committee in conducting investigations into alleged attorney misconduct has been labeled sui generis—neither civil or criminal. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). As a result, the bar grievance process is not correctly labeled a judicial proceeding. In determining whether a proceeding is quasi-judicial, however, our review is not limited to the label of the proceeding, but includes a review of the proceeding itself. The principal factors to be considered “are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties.” Kelley v. Bonney, 221 Conn. 549, 567, 606 A.2d 693 (1992); see also Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev’d on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). Further, quasi-judicial is defined as “the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” Black’s Law Dictionary (6th Ed. 1990).

In a grievance proceeding, following the filing of a complaint against an attorney with the statewide bar counsel and its referral to a local panel, the grievance panel must follow the procedures set forth in General Statutes § 51-90e et seq. and Practice Book § 27F et seq. The grievance panel shall investigate the complaint and determine whether probable cause exists that the attorney is guilty of misconduct. General Statutes § 51-90f (a); Practice Book § 27F (d). Within ninety days, the grievance panel shall file its written findings and recommendation with the committee. General Statutes § 51-90f (c); Practice Book § 27F (g). Following receipt of the grievance panel’s recommendation, the committee has the power to assign the case to a reviewing committee, to compel testimony and the production of evidence by use of its subpoena power, to hold hearings at which the complainant and respondent shall have the right to be heard and, ultimately, to recommend dismissal of the complaint, to impose sanctions; see Practice Book § 27M.1; or to order the presentment of the respondent to the Superior Court. See General Statutes § 51-90g; Practice Book § 27J (a) through (d).

These rules clearly demonstrate that the committee has significant authority to conduct proceedings of a quasi-judicial nature. See Kelley v. Bonney, supra, 221 Conn. 567. Therefore, we conclude that bar grievance proceedings are quasi-judicial. As a result, absolute immunity for the content of statements made during a quasi-judicial proceeding, as established in Petyan, applies to bar grievance proceedings.

B

Because we conclude that bar grievants are absolutely immune from liability for the content of any relevant statements made during a bar grievance proceeding, we must next consider whether that absolute imnmnity should be extended to encompass the actual filing of the grievance complaint. The issue of whether bar grievants should be granted absolute immunity for the act of filing a grievance is again an issue of first impression in Connecticut. We conclude that bar grievants are absolutely immune for the act of filing a grievance complaint.

The plaintiff cites Blakeslee & Sons v. Carroll, 64 Conn. 223, 235, 29 A. 473 (1894), for the proposition that “absolute immunity is not favored” and argues that only a conditional privilege should exist wherein the privilege could be lost if action is taken with malice, improper motive, or bad faith. See Miles v. Perry, 11 Conn. App. 584, 594, 529 A.2d 199 (1987). The defendant and the amicus both argue that, based on the present trend of other states in adopting absolute immunity for the act of filing a grievance and the prevailing public policy, we should provide absolute immunity for bar grievants for the filing of a grievance complaint. We address these arguments in turn.

While this is an issue of first impression in Connecticut, numerous other jurisdictions have cloaked bar grievants with absolute immunity for the filing of a grievance. In R. L. Netterville v. Lear Siegler, Inc., 397 So. 2d 1109, 1113 (Miss. 1981), the Mississippi Supreme Court held that any person who files a complaint in accordance with the Mississippi disciplinary statutes and rules is accorded absolute privilege and no lawsuit predicated thereon may be instituted. The R. L. Netter-ville court reasoned that “[t]he courts can be fully effective in serving the public only if the people see them as a symbol of impartial judgment.” Id., 1112.

In Kerpelman v. Bricker, 23 Md. App. 628, 634, 329 A.2d 423 (1974), the Maryland Court of Appeals held that a lawyer who files a grievance against another lawyer is protected by an absolute privilege, which is not dependent on the existence or nonexistence of malice. In Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (App. 1980), the Arizona Appellate Court held that there is an absolute privilege for anyone who files a complaint with the state bar alleging unethical conduct by an attorney.

The important public policy involved is to protect the integrity of the court. To preserve this integrity, “a comprehensive disciplinary scheme has been established to safeguard the administration of justice, and designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners. In re Durant, [80 Conn. 140, 147-48, 67 A. 497 (1907)].” Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554, 663 A.2d 317 (1995). The Rules of Professional Conduct and the investigative and enforcement procedures set forth in General Statutes § 51-90g et seq. and Practice Book § 27F et seq. “ ‘authorize the grievance committee to act as an arm of the court in fulfilling this responsibility.’ Statewide Grievance Committee v. Rozbicki, [supra, 211 Conn. 239].” Massameno v. Statewide Grievance Committee, supra, 554. When a court disciplines an attorney, “it does so not to mete out punishment to an offender, but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. . . .’’(Citations omitted; internal quotation marks omitted.) Id., 555.

If unsuccessful bar grievants were subject to retaliatory lawsuits it would have a “chilling effect” on the public. Capoccia v. Couch, 134 App. Div. 2d 806, 807-808, 522 N.Y.S.2d 261 (1987). The court in R. L. Netterville v. Lear Siegler, Inc., supra, 397 So. 2d 1113, reasoned that “[s]uch a [bar grievance] complaint must be privileged, or one who felt aggrieved by his lawyer would hesitate to complain for fear that he might face a damage suit if he failed to prove his complaint. Such a fear, whether it was groundless or not, would reduce the bar’s effectiveness in policing its own ranks.” A rule establishing absolute immunity for bar grievants protects the public confidence and the integrity of our judicial system. See Hearing on Immunity for Ethics Complaints, 96 N.J. 669, 679, 477 A.2d 339 (1984).

In addition, the amicus argues that the plaintiff, by filing a suit alleging vexatious litigation and abuse of process against the defendant, was effectively utilizing what has become known as a “strategic lawsuit against public participation” or SLAPP suit. See G. Pring & P. Canan, “Strategic Lawsuits Against Public Participation (‘SLAPPs’): An Introduction for Bench, Bar and Bystanders,” 12 U. Bridgeport L. Rev. 937 (1992). The distinctive elements of a SLAPP suit are (1) a civil complaint (2) filed against a nongovernment individual (3) because of their communications to government bodies (4) that involves a substantive issue of some public concern. Id., 946-47. The purpose of a SLAPP suit is to punish and intimidate citizens who petition state agencies and have the ultimate effect of “chilling” any such action. See M. Margulies, “Is It A SLAPP Suit? Or, May Connecticut Lawyers Sue Bar Grievants For Vexatious Litigation?” 12 U. Bridgeport L. Rev. 963 (1992). We find the analogy and arguments in support presented by the amicus to be persuasive. While we do not decide today whether the plaintiffs actions constituted a SLAPP suit, we agree that if bar grievants were not absolutely immune from liability for the act of filing a grievance that it would have a chilling result.

It has been argued that the potential harm to an attorney’s reputation and career from groundless complaints is great, that lawyers should not be deprived of their right to legal process, and that the result of providing absolute immunity to bar grievants would be an abuse of attorney grievance procedures. Our response to these arguments is that any such concerns are outweighed by the importance of public confidence in the supervision of attorney conduct. While our decision in this case may place a burden on the legal profession, “the proper administration of justice requires that there be a forum where a layman may have his complaint heard, investigated, and, if necessary, judicially determined.” R. L. Netterville v. Lear Siegler, Inc., supra, 397 So. 2d 1113. “We should not tolerate the possibility within our disciplinary system that a potential ethics complainant may be intimidated by an attorney into not filing a complaint. The need for public confidence in the integrity of that system is much too important.” Hearing on Immunity for Ethics Complaints, supra, 96 N.J. 676.

The potential harm suffered by lawyers in our state as a result of our decision today is minimized by a number of rales of practice. Practice Book § 27F (e) provides for confidentiality for the investigations and proceedings of the grievance panel prior to a finding of probable cause. Practice Book § 27F (a) (2) provides for summary dismissal of complaints that, inter alia, lack sufficient specificity, are duplicative, are stale, or are outside the scope of the rales of professional conduct.

In its decision granting summary judgment on the first three counts of the complaint, which included abuse of process and vexatious litigation, the trial court correctly opined “[tjhat the public policy of protecting the courts and the public from unethical and unprofessional attorneys is so strong that there is absolute immunity for the complainant in filing or otherwise causing the institution of attorney disciplinary proceedings.”

II

The plaintiff next claims that the trial court improperly determined that the defendant was entitled to judgment on the fourth and seventh counts of the complaint when it ruled that he owed no duty to the plaintiff under negligence law and under CUTPA.

A

In the fourth count of his amended complaint, the plaintiff alleges that he is entitled to damages in that “Kearns negligently failed to research the facts underlying the [Wirtz] complaint, negligently failed to investigate the matter . . . [and] [negligently prepared the [Wirtz] complaint.” The question of whether a duty exists is one of law for the court. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). Only if a duty is found to exist does the trier of fact determine whether the defendant violated that duty in the particular instance.

Nothing in the plaintiffs complaint or brief takes this case beyond the applicability of the rule established in Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988), where the court held that “attorneys are not liable to persons other than their clients for the negligent rendering of services.” This rule has been fashioned as a matter of public policy. Id., 245. The obligation of an attorney to focus her “ ‘[e]ntire devotion to the interest of the client’; G. Sharswood, An Essay on Professional Ethics (5th Ed. 1896) p. 78; see also Rules of Professional Conduct 1.7; and Mozzochi v. Beck, 204 Conn. 490, 497, 529 A.2d 171 (1987)”; Krawczyk v. Stingle, supra, 246; would be seriously undermined were the rule different. Because the defendant owes no duty to the plaintiff, his cause of action must fail.

B

The allegations in the seventh count in the plaintiffs amended complaint sound in a claim under CUTPA. For the same public policy reasons set forth in Krawczyk, our Supreme Court has also held that attorneys cannot be liable to their clients’ adversaries for alleged unfair trade practices occurring in the course of the attorneys’ representation of a client. “ ‘Determining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy.’ Krawczyk v. Stingle, [supra, 208 Conn. 245] citing 3 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 18.6, p. 730. Providing a private cause of action under CUTPA to a supposedly aggrieved party for the actions of his or her opponent’s attorney would stand the attorney-client relationship on its head and would compromise an attorney’s duty of undivided loyalty to his or her client and thwart the exercise of the attorney’s independent professional judgment on his or her client’s behalf.” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 727, 627 A.2d 374 (1993). Thus, we conclude that the trial court properly granted summary judgment in favor of the defendant on the seventh count.

Ill

The plaintiffs third claim is that the trial court improperly determined that the defendant was entitled to judgment on the fifth and sixth counts of the complaint. The plaintiff alleges in the fifth count that the mailing of the Wirtz complaint and the grievance to the plaintiffs insurance carrier constitutes tortious interference -with the plaintiffs business relationship with his insurance carrier. In the sixth count, the plaintiff alleges that the same conduct constitutes libel. The ruling of the trial court as to the sixth count is controlled by Petyan v. Ellis, supra, 200 Conn. 243, in that the defendant is clothed with absolute immunity for the content of statements made in the context of judicial and quasi-judicial proceedings. The court’s ruling, therefore, was proper.

The plaintiffs brief does not address the propriety of the trial court’s ruling granting summary judgment in favor of the defendant on the fifth count. As the issue was not briefed, it will be deemed abandoned. Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).

Finally, the plaintiff asserts he was entitled to partial summary judgment on the abuse of process and vexatious litigation counts of his complaint. This claim must fail as a result of our conclusion in part I B that bar grievants are absolutely immune for the act of filing a grievance complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       On June 1, 1992, the defendant withdrew the first civil action because of a defect in the service of process, and reinstituted the same claims in a new lawsuit including new service of process with a return date of June 23, 1992.

       On June 29,1992, the local panel of the committee found probable cause that the plaintiff had violated several of the Rules of Professional Conduct. A hearing was held before a reviewing panel of the committee on October 8,1992. On January 21,1993, the committee found that the plaintiffs conduct did not rise to the level of an ethical violation and dismissed the complaint.

       Briefs were filed by the Connecticut Civil liberties Union Foundation, as amicus curiae, in the trial court and in the Appellate Court..

       In Chester v. Willey, Superior Court, judicial district of Haxtford-New Britain at Hartford, Docket No. 374862 (June 11, 1991) (4 Conn. L. Rptr. 161) (M. Hennessey, J.), the trial court addressed this issue. While the trial court correctly concluded that absolute immunity does exist for bar grievants in cases involving defamation claims, the trial court reasoned that grievance proceedings are judicial proceedings. For the reasons set forth previously, we conclude that grievance proceedings are more appropriately classified as quasi-judicial.

       See also Stone v. Rosen, 348 So. 2d 387 (Fla. App. 1977); Hearing on Immunity for Ethics Complaints, 96 N.J. 669, 477 A.2d 339 (1984); Capoccia v. Couch, 134 App. Div. 2d 806, 522 N.Y.S.2d 261 (1987); but cf. Goldstein v. Serio, 496 So. 2d 412 (La. App. 1986) (holding absolute privilege not affirmative defense to claims of abuse of process and malicious prosecution).

       Attorneys who are subjected to multiple groundless grievances may seek an injunction or a bill of peace; (a bill filed to procure repose from repeated litigation and one of the earliest instances in which chancery courts entertained jurisdiction on the ground of preventing a multiplicity of suits; see 19 Am. Jur., Equity § 81); to enjoin the party from filing further complaints. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). If the grievantis a fellow attorney, as in this case, the grievant is subject to discipline from the bar.

       The plaintiff relies on DeLaurentis v. New Haven, 220 Conn. 225, 597 A.2d 807 (1991), to support his argument that persons who file unsuccessful grievances may be sued for vexatious litigation. We find DeLaurentis distinguishable. In DeLaurentis, the former commissioner of the New Haven parking authority commission brought suit against the city of New Haven and its then mayor alleging that the mayor improperly instituted removal proceedings against him. The city charter provided that the mayor had the power to appoint and discharge the commissioners. Under the charter, the mayor had the power to initiate removal proceedings, appoint an arbitrator, and in the event that the mayor disagreed with the arbitrator’s findings, the mayor could disregard the arbitrator’s findings and proceed with the removal proceedings.
      The DeLaurentis court applied a two part analysis to determine whether the mayor was entitled to prosecutorial immunity against the plaintiffs subsequent vexatious litigation suit. The test required, first, a showing of need for the immunity and, second, the presence of adequate safeguards against prosecutorial abuse. Id., 245. In DeLaurentis, the court held that the mayor was not entitled to immunity because no adequate safeguards existed against prosecutorial abuse. Id., 248.
      We limit our review of DeLaurentis to the purpose of distinguishing it from the present case. Because bar grievance proceedings possess adequate safeguards against abuse not present in the New Haven city charter at issue in DeLaurentis, we find the two proceedings distinguishable. See General Statutes § 51-90e et seq. and Practice Book § 27B et seq.

       To the extent the seventh count encompasses the conduct of the defendant in filing the grievance, as opposed to prosecuting the Wirtz lawsuit, we have determined that the defendant is entitled to immunity for these actions and they cannot, therefore, form the basis for a CUTPA claim.

       In a single paragraph at the conclusion of his brief, the plaintiff claims that the trial court’s decision violates the equal protection clauses of “the State [and] U.S. Constitutions” and includes his “First Amendment right to institute lawsuits.” These bare-bone assertions are made without any citation to legal authority. Moreover, they were not raised before the trial court. We will not reverse the judgment of the trial court on the basis of challenges to its rulings that have not been adequately briefed. Practice Book § 4065; Latham & Associates, Inc. v. William Raveis Real Estate, Inc., supra, 218 Conn. 300.


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    JOSEPH JULIAN ET AL. v. LIBERTY MUTUAL INSURANCE COMPANY
    (14727)
    Spear, Hennessy and Shea, Js.
    Argued March 21
    officially released October 1, 1996

      John J. Dunham, for the appellants (plaintiffs).

      Robin S. Linker, for the appellee (defendant).
   SHEA, J.

The plaintiffs appeal from a summary judgment for the defendant insurer on their four count complaint, in which they sought damages for the refusal of the defendant to defend and assume responsibility for a patent infringement suit against the plaintiffs pursuant to the terms of the general liability policy issued to the plaintiffs. The principal issue on appeal is whether the policy provision affording coverage for “advertising injury” includes the claims against the plaintiffs set forth in the complaint that instituted the patent infringement action. The trial court held that the complaint cannot reasonably be construed to allege any claim relating to “advertising injury” as defined in the policy. We affirm the judgment of the trial court.

There is no disagreement about the relevant facts. The plaintiff Coilmate, Inc. (Coilmate), manufactures and sells a machine known as a “Coilmate decoiler” to various businesses throughout the United States. The plaintiff Joseph Julian is its president and sole shareholder. On October 23, 1991, Kenturo Takahashi filed a complaint for patent infringement against Coilmate and Julian in the United States District Court for the District of Connecticut, alleging that they had infringed and had induced others to infringe a United States patent that he owned “in connection with the manufacture, sale and use of decoder machines such as the machine known as ‘Coilmate’ . . . .” The complaint in that action sought treble damages and attorney’s fees, alleging that the infringement was of a “willful and deliberate nature.” When Coilmate and Julian requested their liability insurer, the defendant, Liberty Mutual Insurance Company (Liberty), to defend the federal court action, it refused to do so, maintaining that a patent infringement suit is not included within the coverage afforded by its policy. The plaintiffs proceeded then to defend the federal court action and claim to have incurred litigation expenses of $180,000 in doing so, in addition to a payment of $90,000 to settle the claim, for which they seek reimbursement in this action.

The policy that Liberty issued to insure both plaintiffs is entitled “Commercial General Liability Form” and provides coverage, inter alia, for any damages that the insured becomes obligated to pay “because of . . . ‘advertising injury’ to which this coverage part applies.” More specifically, the policy states: “This insurance applies to ... ‘Advertising injury’ caused by an offense committed in the course of advertising your goods, products or services.” Excluded from that statement of coverage is advertising injury arising out of eight specific situations, none of which are claimed to be applicable in this case.

The term, “advertising injury,” is defined in the policy definitions schedule as “injury arising out of one or more of the following offenses,” one of which the plaintiffs claim fits the “offense” of patent infringement involved in this case: “infringement of copyright, title or slogan.” The plaintiffs maintain that “title” means the right to ownership of any kind of property, such as a patent, and, therefore, a complaint alleging infringement of a patent involves essentially a claim of trespass upon the “title” or ownership rights created by the patent. Even if patent infringement is encompassed in the phrase, “infringement of . . . title,” they recognize that policy coverage is available only when the advertising injury is “caused by an offense committed in the course of advertising goods, products or services.” The plaintiffs argue that that requirement is satisfied in this case because Julian’s affidavit filed in the summary judgment proceeding, which the defendant has not controverted, states that he advertised the Coilmate decoiler extensively in brochures mailed to potential customers, in metal industry magazines, and at various trade shows. The affidavit also indicates that these advertisements resulted in substantial sales of that product to customers. The plaintiffs contend that those activities might well constitute the offense referred to in the Takahashi complaint by the allegation that the plaintiffs “induced others to infringe” the patent involved in that litigation.

I

INFRINGEMENT OF TITLE

The argument that a patent infringement suit constitutes a claim of infringement of title and thus falls within the policy definition of advertising injury is consistent with most dictionary definitions of the word title. Lexicographers offer several definitions of “title,” such as “inscription,” “a descriptive heading,” and “an appellation of dignity, honor or preeminence attached to a person or family.” They also ordinarily include a definition involving the ownership of property: “the union of all the elements constituting legal ownership”; Webster’s Third New International Dictionary; “[t]he foundation of ownership . . . [t]he means whereby an owner is enabled to maintain or assert his possession and enjoyment”; Ballentine’s Law Dictionary (3d Ed. 1969); “[t]he formal right of ownership of property”; Black’s Law Dictionaiy (6th Ed. 1990); “the legal right to possession of property”; Random House Dictionary of the English Language (2d Ed. 1987); and “owning” “possession.” Roget’s International Thesaurus (5th Ed. 1994).

In most of the cases that have construed the phrase “infringement of copyright, title or slogan” in policy provisions defining advertising injury, however, the courts have concluded that “title” does not include the right of ownership of property embodied in a patent. “First, and perhaps most significantly, there is the glaring absence of the word ‘patent’ anywhere in the policy language defining advertising injury. . . . Surely if coverage for patent infringement were anticipated there would be some mention of the term itself just as ‘copyright’ is explicitly listed.” Owens-Brockway Glass Container, Inc. v. International Ins. Co., 884 F. Sup. 363, 367 (E.D. Cal. 1995). “It is even more absurd to suggest that the phrase ‘infringement of . . . title,’ as used in the clause ‘infringement of copyright, title or slogan,’ encompasses patent infringement or inducement to infringe. Basic common sense dictates that if these policies covered any form of patent infringement, the word ‘patent’ would appear in the quoted ‘infringement’ clauses.” Gencor Industries, Inc. v. Wausau Underwriters Ins. Co., 857 F. Sup. 1560, 1564 (M.D. Fla. 1994). “And it is nonsense to suppose that if the parties had intended the insurance policy in question to cover patent infringement claims, the policy would explicitly cover infringements of ‘copyright, title or slogan,’ but then include patent infringement, sub silentio, in a different provision . . . .” St. Paul Fire & Marine Ins. Co. v. Advanced Interventional Systems, Inc., 824 F. Sup. 583, 586 (E.D. Va. 1993). “A plain reading of the term ‘infringement of copyright, title or slogan’ in the course of advertising activities also would exclude a claim of patent infringement.” Atlantic Mutual Ins. Co. v. Brotech Corp., 857 F. Sup. 423, 429 (E.D. Pa. 1994).

The plaintiffs rely on two cases in which “piracy” was included among the offenses constituting advertising injury in the policy definition of that term and was construed to include patent infringement, but those cases reached opposite conclusions with respect to the relationship of that offense to advertising. Aqua Queen Mfg., Inc. v. Charter Oak Fire Ins., 830 F. Sup. 536, 538 (C.D. Cal. 1993); National Union Fire Ins. Co. of Pittsburgh v. Siliconix Inc., 729 F. Sup. 77, 79 (N.D. Cal. 1989). In Iolab Corp. v. Seaboard Surety Co., 15 F.3d 1500, 1506 (9th Cir. 1994), however, the court restricted piracy as used in defining advertising injury to “misappropriation or plagiarism found in the elements of the advertisement itself . . . rather than in the product being advertised.” (Emphasis in original.) In any event, that word is not included in the definition of advertising injury contained in the policy involved in this case. The plaintiffs also cite two cases construing the phrase infringement of title to afford coverage for misappropriation of trade secrets and other confidential information arising out of activities held to constitute advertising. Sentex Systems, Inc. v. Hartford Accident & Indemnity Co., 882 F. Sup. 930, 944 (C.D. Cal. 1995); Merchants Co. v. American Motorists Ins. Co., 794 F. Sup. 611, 618 (S.D. Miss. 1992). In those cases, the courts applied the alternative definition of title offered by lexicographers to include the right of ownership of property, and found sufficient ambiguity in the phrase “infringement of copyright, title or slogan” to resolve the coverage issue in favor of the insured. It is significant that the plaintiffs do not refer to any case holding that such a phrase creates a reasonable expectation on the part of the insured for liability coverage of patent infringement claims.

The plaintiffs raise well established principles of construction that are frequently applied in insurance coverage disputes: (1) when there is ambiguity, an insurance policy should be construed “in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy”; Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); and (2) the duty of an insurer to defend an action is broader than its duty to indemnify and depends on “whether the complaint in that action stated facts which appeared to bring [the] claimed injury within the policy coverage.” Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); Schwartz v. Stevenson, 37 Conn. App. 581, 585, 657 A.2d 244 (1995). The defendant refers to other rules of contract interpretation: (1) “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings”; Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959); (2) “the meaning of policy language should ordinarily be drawn from the context in which it is used”; Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 61, 588 A.2d 138 (1991); and (3) “[t]he court must interpret the insurance contract as a whole with all relevant provisions considered together.” Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 705, 569 A.2d 1131 (1990).

Those standard rules of insurance contract interpretation have been applied by the courts that have rejected the contention that “infringement of title” includes infringement of patent rights and that insurers are obliged to defend such suits when that phrase is included in a definition of “advertising injury.” While acknowledging that the definition of title referring to ownership rights is included in most dictionaries, those courts have applied the principle of noscitur a sociis and have found no ambiguity in the phrase infringement of title in the context of the other policy provisions defining advertising injury. “The language defining ‘advertising injury’ includes ‘slander,’ ‘libel,’ ‘right of privacy,’ ‘advertising ideas,’ ‘style of doing business,’ and ‘copyright.’ These are specific terms connected to well known legal categories, just as a claim of patent infringement is a distinct legal claim.” Owens-Brockway Glass Container, Inc. v. International Ins. Co., supra, 884 F. Sup. 367. “[I]n the context of a . . . standard ‘advertising injury’ provision the term ‘title’ refers to a distinctive name or designation used to identify a literary or artistic work and not to the legal concept of ownership of property.” Atlantic Mutual Ins. Co. v. Brotech Corp., supra, 857 F. Sup. 429; see J.A. Brundage Plumbing & Roto-Rooter, Inc. v. Massachusetts Bay Ins. Co., 818 F. Sup. 553, 559 (W.D.N.Y. 1993).

We are not inclined to chart new pathways in the law with respect to an interpretation of a single word in an insurance policy that excludes coverage for one special category of claims, when that interpretation has been approved by every court that has considered the issue as far as we are aware. It is preferable that such matters should be regarded as settled. We conclude that, in the context of the policy before us, the inclusion of the phrase infringement of title in the definition of advertising injury does not create a reasonable expectation on the part of an insured for liability coverage of patent infringement claims even under the broad standard of potential liability followed in cases involving the duty to defend.

II

DIRECT PATENT INFRINGEMENT

The conclusion we have reached in part I, that title, as used in the policy definition of advertising injury, does not refer to the ownership rights represented by a patent, makes our discussion of the second aspect of that definition relating to causation somewhat superfluous. Our consideration of that issue, however, does provide additional support for our holding that the coverage provided in the policy for advertising injury does not obligate the defendant to defend direct 6 patent infringement claims. The insuring agreement provides coverage for “ ‘[advertising injury’ caused by an offense committed in the course of advertising your goods, products or services.” The provision defining the term advertising injury restricts its meaning to “injury arising out of one or more of the following offenses,” among which is listed “[ijnfringement of copyright, title or slogan.” Thus, the policy imposes two requirements for coverage of an advertising injury, even when a specified offense, such as infringement of title, is involved. First, that injury must have been one arising out of the offense in order to qualify under the definition of advertising injury. Second, it must have been “caused by an offense committed in the course of advertising [the insured’s] goods.”

The complaint in the patent infringement suit brought against the plaintiffs by Takahashi contains no reference to any advertising activities of the plaintiffs. It alleges only that each plaintiff “has infringed and is infringing and has induced others to infringe [Taka-hashi’s patent] in connection with the manufacture, sale and use of decoder machines such as the machine known as ‘Coilmate’. ...” The affidavit filed by the plaintiffs in opposition to the defendant’s motion for summary judgment, however, states that, since the formation of Coilmate in 1986, its decoder has been widely advertised at trade shows, in brochures mailed to potential customers, and in trade magazines. The affidavit also indicates that these advertising activities have resulted in sales to customers who had seen the brochures or the magazine advertisements.

The plaintiffs argue that the policy language does not require “that the covered injury itself be caused by advertising” and, therefore, that it is “incorrect to require that the Takahashi complaint allege an injury resulting from or caused by advertising.” We disagree. The plaintiffs overlook the provision of the insuring agreement limiting coverage even for an offense satisfying the definition of advertising injury: “This insurance applies to . . . (2) ‘Advertising injury’ caused by an offense committed in the course of advertising [the insured’s] goods, products or services.” (Emphasis added.) We construe that provision to mean that a covered advertising injury would have to be causally related to an offense, such as infringement of title, that is itself causally related to the insured’s advertising activities.

In similar cases claiming coverage for patent infringement on the basis of insurance protection for advertising injury, most of the courts have insisted on a causal nexus between that injury and the insured’s advertising. “To compel an insurer to defend under an advertising injury provision, the insured must demonstrate a causal connection between the plaintiff’s claim in the underlying action and the defendant-insured’s advertising.” Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 229 (9th Cir. 1994). “Even if patent infringement were included in the specified acts defining ‘advertising injury,’ the claim in the underlying complaint would not trigger a duty to defend. Even where a claim is for conduct specified in the definition of advertising injury, courts have consistently held that there must be a causal connection between the injury alleged in the underlying complaint and the insured’s advertising activity.” Atlantic Mutual Ins. Co. v. Brotech Corp., supra, 857 F. Sup. 429. “Because direct infringement involves the making, using, or selling of the patented invention, the infringement does not occur in the course of the insured’s advertising activities.” Intex Plastics Sales Co. v. United National Ins. Co., 23 F.3d 254, 256 (9th Cir. 1994); National Union Fire Ins. Co. of Pittsburgh v. Siliconix Inc., supra, 729 F. Sup. 80; Bank of the West v. Superior Court, 2 Cal. 4th 1254, 1275, 833 P.2d 545, 10 Cal. Rptr. 2d 538 (1992) (same).

The plaintiffs maintain that, even if a causal relationship between the alleged patent infringement and the insured’s advertising is essential, that requirement is satisfied by their affidavit describing their advertising activities and referring to the sales that resulted therefrom, because sales and advertising are inextricably intertwined. They rely on Aqua Queen Mfg., Inc. v. Charter Oak Fire Ins., supra, 830 F. Sup. 538, in which the court concluded that the insured’s “advertising activities were part and parcel of its sales and that selling an infringing product is an infringement occurring in the course of advertising and therefore covered by the Policy as a type of advertising injury.” That decision, however, was reversed without a published opinion. Aqua Queen Mfg. Co. v. Charter Oak Fire Ins. Co., 46 F.3d 1138 (9th Cir. 1995). Most courts have rejected the proposition that sales of an infringing product advertised by the insured establish a causal relationship between the advertisements and the infringement. “Even if true, these facts [increased sales of the infringing product] simply do not establish the necessary causal connection between the alleged infringement and [the insured’s] advertising.” Everest & Jennings, Inc. v. American Motorists Ins. Co., supra, 23 F.3d 226. “[T]he mere advertising of a patented device is not itself an infringement.” Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., 372 F.2d 263, 270 (2d Cir. 1967). “[T]he infringing act is the making, using, or selling of a patented invention, not the mere advertising of the invention.” National Union Fire Ins. Co. of Pittsburgh v. Siliconix Inc., supra, 729 F. Sup. 79. “[A] claim of patent infringement does not occur in the course ... of advertising activities within the meaning of the policy even though the insured advertises the infringing product . . . .” (Internal quotation marks omitted.) Iolab Corp. v. Seaboard Surety Co., supra, 15 F.3d 1505.

The plaintiffs have not suggested any manner in which advertising could cause direct patent infringement, and we are unable to visualize any. Since the creation of the infringing product must precede its advertisement, the latter can hardly be the cause of the former. We conclude that the inability to establish any causal relationship between the plaintiffs’ advertising activities and the alleged patent infringement would preclude their claim of an advertising injury as defined in the policy.

III

INDUCEMENT TO INFRINGE

The plaintiffs’ fallback position is that, even if their claim of entitlement to a defense of the direct patent infringement claim in the Takahashi complaint should fail, the allegations that each plaintiff “induced others to infringe” the patent involved obligated the defendant to defend at least that aspect of the litigation. Despite the lack of any reference in the Takahashi complaint to advertising, the plaintiffs maintain that the elasticity of notice pleading in the federal courts would have permitted the introduction of evidence under the inducement allegations to prove that the plaintiffs’ advertisements had induced some persons to infringe by purchasing or using the infringing product.

“Whoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C. § 271 (b). It has been held that an allegation of a violation of that provision imposed on the insurer a duty to defend a patent infringement suit because liability as an inducer may arise out of the advertising activities of an insured. Union Ins. Co. v. Land & Sky, Inc., 247 Neb. 696, 703, 529 N.W.2d 773 (1995). “Liability under 35 U.S.C. § 271 (b) can be established where a party takes active steps to induce infringement through advertising or by providing instructions.” Rexnord, Inc. v. Laitrim Corp., 6 U.S.P.Q.2d 1817, 1842 (E.D. Wis. 1988).

The defendant cites authorities indicating that a direct patent infringer cannot also be liable for having induced others to infringe. Fromberg, Inc. v. Thornhill, 315 F.2d 407, 411 n.11 (5th Cir. 1963); New Hampshire Ins. Co. v. R.L. Chaides Construction Co., 847 F. Sup. 1452, 1458 (N.D. Cal. 1994). There has been no determination of whether the plaintiffs were direct patent infringers, however, nor could that issue have been resolved at the time the Takahashi complaint was filed.

In any event, the plaintiffs in this case would not have been entitled to a defense of the inducement claim because of our determination that the offense of infringement of title in the definition of advertising injury in the policy does not refer to the ownership of patent rights. The effect of that holding in part I precludes coverage for patent infringement by inducing others to infringe in violation of 35 U.S.C. § 271 (b) or by directly violating 35 U.S.C. § 271 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court, Goldberg, J., granted the defendant’s motion for summary judgment on the first two counts. The trial court, Handy, J., subsequently granted the defendant’s motion for summary judgment on the third and fourth counts, in which each plaintiff claimed the breach of an implied covenant of good faith and fair dealing based on the defendant’s refusal to defend the patent infringement action. The plaintiffs have not briefed any claims relating to the summary judgment on the third and fourth counts. Accordingly, we treat any challenge to Judge Handy’s action as abandoned. Gaudet v. Safeco Ins. Co., 219 Conn. 391, 403, 593 A.2d 1362 (1991); Williams v. Chameides, 26 Conn. App. 818, 825, 603 A.2d 1211, cert. denied, 221 Conn. 923, 608 A.2d 689 (1992).

       Several dictionaries define “piracy” to include patent infringement explicitly. Black’s Law Dictionary (6th Ed. 1990); Oxford English Dictionary (2d Ed. 1989); Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989).

       The policy issued by the defendant insurer includes “[misappropriation of advertising ideas or style of doing business” in the definition of “advertising injury.” The plaintiffs have not relied on that provision to support their claim of coverage for patent infringement suits.

         “[I]t is known by the company it keeps.” 3 A. Corbin, Contracts (1960) § 552.

       Patent infringement is direct when the infringer has violated 35 U.S.C. § 271 (a), which provides: “Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”

       The insuring agreement (“Coverage B. Personal and Advertising Injury Liability”) provides in part: “a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal injury’ or ‘advertising injury’ to which this coverage part applies. We will have the right and duty to defend any ‘suit’ seeking those damages. . . . b. This insurance applies to . . . (2) 'Advertising injury’ caused by an offense committed in the course of advertising your goods, products or services.”

       The policy provides: “ ‘Advertising injury’ means injury arising out of one or more of the following offenses . . . d. Infringement of copyright, title or slogan.”