author: BEAR, J. WEST, J.,

text:
    ROLAND TODD WHITE v. MAZDA MOTOR OF AMERICA, INC., ET AL.
    (AC 33757)
    DiPentima, C. J., and Bear and West, Js.
    Argued April 17
    officially released November 6, 2012

      Frank J. McCoy, Jr., with whom, on the brief, was Alexander J. Sarris, for the appellant (plaintiff).

      Paul D. Williams, with whom was James E. Hennes-sey, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiff, Roland Todd White, appeals from the summary judgment rendered by the trial court in favor of the defendants, Mazda Motor of America, Inc. (Mazda), and Cartwright Auto, LLC (dealership), in this product liability action stemming from a fire in his 2007 Mazda3 automobile (vehicle), which allegedly caused injury to the plaintiff. On appeal, the plaintiff claims that the court erred in concluding that his case should not proceed to a trial on the merits because he had failed to present sufficient evidence in opposition to the defendants’ motion for summary judgment. We affirm the judgment of the trial court.

The record reveals the following. The plaintiff filed a two count amended complaint against the defendants seeking damages under the Connecticut Product Liability Act (act), General Statutes § 52-572m et seq., alleging that the vehicle was “defective and unreasonably dangerous.” The plaintiff alleged in his complaint that on October 16, 2006, he purchased the vehicle from the dealership. The plaintiff utilized the vehicle “for the purpose for which it had been designed, produced, manufactured, tested and sold; and [it] was used in a manner intended and foreseeable to [the defendants].” On November 15, 2006, approximately one month after the plaintiff had purchased the vehicle, he “lifted up the hood of the [vehicle] and flames erupted from [it], causing the [p]laintiff to sustain [injuries].”

On the basis of these alleged facts, the plaintiff claimed that the vehicle was defective and unreasonably dangerous in the following ways: (1) the fuel lines on the fuel rail of the vehicle were pressed onto the fitting at the fuel rail in such a way that a fuel leak occurred and caused a fire; (2) the fuel lines were installed or secured with clamps improperly, which caused damage to the lines, resulting in a fuel leak and a fire; (3) the defendants negligently installed the fuel lines on the vehicle in an incorrect manner, causing a fuel leak and a fire; (4) the defendants negligently failed to design the vehicle and its component parts so that it would not be a hazard to a consumer purchaser; (5) the defendants negligently failed to test or inspect the vehicle and its component parts; (6) the defendants manufactured or sold the vehicle with defective component parts or a defective engine, thereby causing a hazard to users of the vehicle; (7) the defendants failed to warn the plaintiff of the aforesaid conditions; (8) the defendants breached their statutory warranty of mer-chantablility in that the vehicle was not fit for the ordinary purpose for which it was sold; and (9) the defendants sold the vehicle in a defective, unsafe and dangerous condition, thereby subjecting the plaintiff to an unreasonable risk of injury.

On December 1, 2010, the defendants filed a motion for summary judgment on the ground that the plaintiff, “among other things, [had] adduced no evidence, expert or otherwise, to establish that [1] the vehicle at issue was defectively designed or manufactured, or [2] that the alleged defect [in the vehicle] caused [the plaintiff’s] injuries.” In their supporting memorandum, the defendants argued that the plaintiff “failed to elicit any evidence in discovery that the [v]ehicle was defective in that it was unreasonably dangerous, that any alleged defect caused [the plaintiff’s] injury, that any alleged defect existed at the time of sale, or that the [v]ehicle reached [the] [p]laintiff without substantial change in condition.” They also argued that the plaintiff failed to set forth any evidence regarding a failure to warn. Attached to the defendants’ motion and supporting memorandum were multiple documents, including portions of the plaintiff’s deposition testimony, portions of the deposition testimony of the plaintiff’s expert, Richard E. Morris, a certified fire investigator, and copies of two reports written by Morris. The defendants conceded, for purposes of the motion for summary judgment only, the truth of the following deposition testimony of the plaintiff: On or about October 16, 2006, the plaintiff purchased the vehicle from the dealership. The plaintiff utilized the vehicle for his commute to and from his place of employment, which was approximately sixty miles each way, and he made the trip approximately forty times in the vehicle before the incident on November 16, 2006. The plaintiff put approximately 2800 miles on the vehicle traveling to and from work. Prior to the fire, the plaintiff had no problems with the vehicle and never made any complaints about it. Before the fire, the plaintiff was satisfied with the operation of the vehicle.

The defendants also attached portions of Morris’ deposition at which he testified that he was “not offering an opinion that the [vehicle] was defective . . . .” He also agreed that he was not an expert in automobile electronics, design or manufacture, and that he was not an expert in fuel line component manufacture or design. Morris also testified that his research did not reveal any history of similar fires in other Mazda3s. The defendants also attached two reports written by Morris in which he opined, after examining another Mazda3, referred to by him as an exemplar vehicle, that the “fire [in the plaintiffs vehicle] was most likely caused by a fuel leak in the fuel rail system.” Morris further opined that “either the clip was improperly installed on the gas line which allowed it to loosen or that a gasket was improperly installed allowing gasoline to seep through and drop onto the engine manifold.” He further stated: “[T]his fire is still a result of the gas lines, the plastic and rubber fittings and gas lines associated with the fuel rail of this vehicle and . . . the fire appears to be from the cause of a mechanical failure and ... is the direct result of gasoline leaking on a hot surface causing the vehicle to catch fire.”

On January 3, 2011, the plaintiff filed an objection to the defendants’ motion for summary judgment on the basis that the plaintiff had “provided sufficient evidence that the vehicle . . . harbored a defective design and/ or improper installation of automotive parts that ultimately caused a car fire and, subsequently, the [plaintiff’s injuries. Therefore, the [p]laintiff has set forth a prima facie case for his claim under the [act].” He argued in his supporting memorandum that the court should deny the defendants’ motion because he did submit, by means of Morris’ testimony, reports and affidavit, sufficient evidence that the vehicle was defectively designed or manufactured. Specifically, the plaintiff cited Morris’ testimony that “Morris came to the conclusion that the plastic release tab clips on the gas line and fuel lines and/or gaskets were defective in that they were flimsy, did not function correctly and ultimately failed, thereby serving as the most likely cause of the car fire.” The plaintiff also cited Morris’ testimony that he was “pretty amazed that the clip to the fuel line was flimsy and, by a simple touch, sprung off the fuel line.”

Additionally, the plaintiff provided Morris’ affidavit in which Morris attested that he is familiar with external and internal components of automobiles, that he is a private fire investigator who regularly inspects automobiles in an effort to identify the origin and cause of fires, that he conducted an origin and cause of fire investigation on the plaintiffs vehicle, that it was his professional opinion that “the release tab clip on the gas line and/or gasket did not function correctly and failed, thereby being the most likely cause of the [vehicle’s] fire [and that] [t]his situation would allow gasoline to escape and seep through then drop onto the engine manifold.” He further averred that the cause of the vehicle’s fire “was a mechanical failure related to the plastic and rubber fillings and/or gas lines associated with the fuel rail of [the] vehicle. ... As a result of [this] mechanical failure, gasoline proceeded to leak onto a hot surface, thereby causing the vehicle to catch fire.” The plaintiff argued that Morris’ expert testimony, reports and affidavit, all of which were attached as exhibits to the plaintiffs objection and supporting memorandum in opposition to the defendants’ motion for summary judgment, provided sufficient evidence to establish a prima facie claim under the act. He further argued that, even if Morris did not qualify as an expert for all aspects of this case, “there still exists a genuine issue of material fact as to whether the defective condition of the vehicle was the proximate cause of the [plaintiffs harm.”

On February 16, 2011, the defendants filed a reply brief in further support of their motion for summary judgment. In their reply, the defendants asserted that Morns, the plaintiffs “sole expert witness . . . has not — and cannot — provide an opinion concerning whether the vehicle’s fuel system was defectively designed or manufactured.” The defendants specifically cited to Morris’ deposition testimony where he stated that he was not offering an opinion that the vehicle was defective and that he was not an expert in “[1] automobile mechanics, [2] automobile electronics, [3] the design or manufacture of any automobile components related to fuel lines ... [4] the design of automobiles ... or [5] the manufacture of automobiles . . . .” (Internal quotation marks omitted.) They also argued that the plaintiffs alternate argument concerning proximate cause was a “red herring” in that the plaintiff first must demonstrate a defect causing an unreasonably dangerous condition before proving proximate cause and that he failed to provide any competent expert testimony regarding a defect in the vehicle.

On June 22, 2011, the court granted the defendants’ motion for summary judgment. In its memorandum of decision, the court stated: “Connecticut’s general rule requires competent expert evidence where the issues involve a question beyond the field of ordinary knowledge and experiences of judges and jurors. In particular, in cases involving automobiles, expert testimony is particularly essential due to the highly technical, complex and specialized questions raised by such claims.” The court subsequently found that because Morris, a certified fire investigator, did not offer an opinion that the vehicle was defectively designed or manufactured, the plaintiff “failed to proffer sufficient expert testimony as required pursuant to [the act].” Additionally, the court determined that without such expert testimony, a jury would be unable to determine the proximate cause of the plaintiffs harm. On July 7,2011, the plaintiff filed a motion to reargue, and, on July 28, 2011, the court denied that motion. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the court erred in granting the defendants’ motion for summary judgment on the ground that the plaintiff failed to provide sufficient evidence that the vehicle was defective and unreasonably dangerous. The plaintiff argues that “the trial court granted the defendants’ . . . motion for summary judgment requiring the plaintiff ... to produce expert testimony to prove that [his vehicle] was defective when the gas line mechanism exploded under normal use. The plaintiff . . . contends that sufficient evidence that the [vehicle] was defective at the time of its sale was submitted by both expert opinion and by way of the ‘malfunction doctrine.’ ” We disagree.

“Practice Book § 17-49 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Nipmuc Properties, LLC v. Meriden, 130 Conn. App. 806, 811-12, 25 A.3d 714, cert. denied, 302 Conn. 939, 28 A.3d 989 (2011), cert. denied, U.S. , 132 S. Ct. 1718, 182 L. Ed. 2d 253 (2012). “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Montanaro v. Balcom, 132 Conn. App. 520, 524-25, 35 A.3d 280 (2011).

The plaintiff argues that “[cjontrary to allegations made by the [defendants] in their [appellate brief], the [plaintiff] presented various forms of evidence and testimony, both expert and otherwise, to establish a product defect claim that the subject vehicle at issue was defectively designed and/or manufactured pursuant to the [act].” We conclude that the court properly rendered summary judgment in this case.

“[I]n order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.” (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 214, 694 A.2d 1319 (1997). “A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions. . . . Under § 402A of the Restatement (Second) of Torts, a manufacturer is strictly hable for injuries suffered if the product was sold in a defective condition unreasonably dangerous to the user . . . .” (Citations omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co., 257 Conn. 365, 373-74, 778 A.2d 829 (2001). “For a product to be unreasonably dangerous, it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).

Although it is true that an ordinary consumer may, under certain circumstances, be able to form expectations as to the safety of a product; Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 218; we nonetheless consistently have held that “expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.” (Internal quotation marks omitted.) Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 375, 889 A.2d 829 (2006); see also Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 141 (“[i]f lay witnesses and common experience are not sufficient to remove [a] case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case”).

In granting the defendants’ motion for summary judgment in this case, the court determined that the issues involved complex questions outside of the ordinary knowledge and experience of jurors and that Morris’ opinion on the origin of the fire was insufficient to establish the existence of a design or manufacturing defect in the vehicle. The court noted that Morris “only offered an opinion as to how the fire in the vehicle may have started. He did not offer an opinion that the vehicle was defectively designed or manufactured, and he specifically testified that he is not an expert in automobile mechanics, automobile electronics, the design or manufacture of any automobile components related to fuel line designs of automobiles or the manufacture of automobiles.”

We conclude that, considering the evidence presented in the record in a light most favorable to the plaintiff, the court did not err in granting the defendants’ motion for summary judgment. The plaintiff presented Morris’ opinion to the court, identifying the most likely causes of the engine compartment fire. Morris, who examined an exemplar vehicle’s fuel system for potential flaws, however, offered no opinion as to whether the plaintiffs vehicle was defective, testifying at his deposition that he is not an expert in fuel line component manufacture or design, automobile mechanics, automobile electronics or the manufacture or design of automobiles and that he was not opining that the vehicle, in fact, was defective. Although Morris’ opinion on the origin of the fire was based, at least in part, on his examination of another Mazda3, which led him to state that he was “pretty amazed that the clip to the fuel line was flimsy and, by a simple touch, sprung off the fuel line” and to conclude that “the plastic release tab clips on the gas line and fuel lines and/or gaskets were defective in that they were flimsy, did not function correctly and ultimately failed, thereby serving as the most likely cause of the car fire,” the plaintiff failed to present any expert to opine on the defectiveness of the design or manufacture of the vehicle or of the Mazda3 model.

On the basis of the record before us, we conclude that, in addition to Morris’ expert opinion on causation, the plaintiff was required to provide the opinion of another expert that established sufficient prima facie evidence of the contested product liability issues in the case, e.g., that the vehicle was in a defective condition unreasonably dangerous to the consumer or user, that the defect or defects caused the injury for which compensation was sought, that the defect or defects existed at the time of the sale and that the vehicle after its manufacture was expected to and did reach the consumer without any substantial change in its condition. The plaintiff neither disclosed such an expert nor offered any expert opinion on those product liability issues. Accordingly, we conclude that the court’s decision granting the defendants’ motion for summary judgment and rendering judgment thereon was appropriate in this case.

The judgment is affirmed.

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

WEST, J.,

dissenting. I respectfully disagree with the majority’s determination that the plaintiff, Roland Todd White, did not raise the “malfunction theory” before the trial court and, therefore, would reach the merits of this claim. On appeal, the plaintiff argues that there is sufficient circumstantial evidence to establish aprima facie case against the defendants, Mazda Motor of America, Inc., and Cartwright Auto, LLC, under the malfunction theory, a product liability doctrine that applies where direct evidence of a specific defect is unavailable and permits a jury to infer that the vehicle was defective through circumstantial evidence, with or without expert testimony. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 133, 25 A.3d 571 (2011). The court concluded that the plaintiff could not establish a prima facie case under the Connecticut Product Liability Act (act), General Statutes § 52-572m et seq., absent expert testimony concerning a product defect. Implicit in the court’s holding is that the plaintiff must identify a specific design or manufacture defect, and must do so with expert testimony. Because I believe that the plaintiff may establish a prima facie case through circumstantial evidence under the malfunction theory and need not present expert testimony regarding the allegedly defective condition of the vehicle, I would reverse the judgment of the trial court granting the defendants’ motion for summary judgment. Accordingly, I respectfully dissent.

I

At the outset, the majority declined to consider the application of the malfunction theory on the ground that the plaintiff did not raise this claim before the trial court. In particular, the majority concluded that the plaintiff based his opposition to the defendants’ motion for summary judgment on the theory that he had “provided sufficient evidence that the vehicle at issue harbored a defective design and/or improper installation of automotive parts that ultimately caused a car fire and, subsequently, the [pjlaintiffs injuries.” In doing so, the majority cites the long-standing authority that “an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial — after it is too late for the trial court ... to address the claim — would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Emphasis in original; internal quotation marks omitted.) Przekopski v. Zoning Board of Appeals, 131 Conn. App. 178, 189, 26 A.3d 657, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011).

Although the plaintiff did not refer to the malfunction theory by name, he did raise before the trial court the argument that his case could be proven through circumstantial evidence. In his memorandum in opposition to the defendants’ motion for summary judgment, the plaintiff argued, in the alternative, that if his expert, Richard E. Morris, did not qualify as an expert witness, the proximate cause of the plaintiffs harm could still be proven through circumstantial evidence. As part of this argument, the plaintiff cited Lewis v. North American Philips Corp., Superior Court, judicial district of New Haven, Docket No. CV-91-0315792-S (April 6,1994), where the court denied the defendant’s motion for summary judgment after determining that there was a genuine issue of material fact as to whether the plaintiffs television set was defective and whether such a defect was the proximate cause of the plaintiffs harm on the basis of the plaintiffs own eyewitness testimony that the television self-ignited. Interestingly, the defendants addressed this argument in their reply brief in further support of their motion for summary judgment by first labeling it as a red herring, but subsequently contending that the “[p]laintiffs argument ignores black letter law by suggesting that a jury should be allowed to speculate, without . . . expert testimony to guide them, as to the alleged defect with the [v]ehicle.”

In its memorandum of decision, the court did not expressly address the plaintiffs argument that the proximate cause of his harm could be proven through circumstantial evidence. Rather, the court concluded that “[wjithout . . . expert testimony, a jury would be unable to determine whether the allegedly defective condition of the vehicle was the proximate cause of the plaintiffs harm.” The plaintiff filed a motion to reargue, in which he claimed that the court misapplied the case law when it determined that expert testimony was required to establish a product defect. The plaintiff then cited additional Connecticut cases where courts permitted a jury to infer a product defect from circumstantial evidence without expert testimony. The court denied the plaintiffs motion to reargue. Because I believe that the trial court was fairly apprised of the full nature of the plaintiffs alternative claim, which fundamentally concerned the application of the malfunction theory for purposes of establishing a prima facie case under the act, I would reach the merits of this claim.

n

Review of whether the plaintiff may establish a prima facie case under the act by way of circumstantial evidence of a product defect is plenary. Our Supreme Court recently has adopted the malfunction theory in Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 123. “To recover under the doctrine of strict liability in tort, a plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. . . . For a product to be unreasonably dangerous, it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. . . .

“Although most product liability cases are based on direct evidence of a specific product defect, there are cases in which such evidence is unavailable. For example, a product malfunction may result in an explosion, a crash or a fire that damages or destroys much, if not all, of the product’s components. See, e.g., Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., 35 Com. Sup. 687, 689, 406 A.2d 1254 (components of television set destroyed in fire), cert. denied, 177 Com. 754, 399 A.2d 526 (1979). The product also may be lost when it has been discarded or destroyed after the incident such that the parties are no longer able to examine it. See, e.g., Fallon v. Matworks, 50 Com. Sup. 207, 210, 918 A.2d 1067 (2007) (product discarded after accident but before it could be examined by experts). In such cases, the plaintiff is mable to produce direct evidence of a defect because of the loss of essential components of the product.

“The absence of direct evidence of a specific product defect is not, however, fatal to a plaintiffs claims, and a plaintiff, mder certain circumstances, may establish a prima facie case using circumstantial evidence of a defect attributable to the manufacturer. ... In addition, a plaintiff need not present evidence to establish a specific defect, [as] long as there is evidence of some unspecified dangerous condition.” (Citations omitted; internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Com. 131-33.

“The malfunction theory of products liability permits the plaintiff to establish a prima facie product liability case on the basis of circumstantial evidence when direct evidence of a defect is unavailable. Most states have adopted some form of the malfunction theory. . . . Although this theory does not relieve a plaintiff of the burden to prove all elements of a product liability claim ... it does help to establish a prima facie product liability case by permitting the jury to infer the existence of a defect attributable to the manufacturer. According to § 3 of the Restatement (Third) of Torts, Products Liability, in a product liability action, the malfunction theory permits a jury to infer that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff . . . was of a kind that ordinarily occurs as a result of product defect . . . and . . . was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. . . . This theory is based on the same principles underlying the doctrine of res ipsa loquitur, which permits a fact finder to infer negligence from the circumstances of the incident, without resort to direct evidence of a specific wrongful act. . . . Indeed, when a relatively new product fails to perform its intended function, the fact that the product failed may be said to speak for itself and provide support for an inference that the product was defective.” (Citations omitted; internal quotation marks omitted.) Id., 133-35.

After setting forth the background principles, the court in Metropolitan Property & Casualty Ins. Co. summarized the adoption of the malfunction theory in Connecticut: “[W]hen direct evidence of a specific defect is unavailable, a jury may rely on circumstantial evidence to infer that a product that malfunctioned was defective at the time it left the manufacturer’s or seller’s control if the plaintiff presents evidence establishing that (1) the incident that caused the plaintiffs harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller. These two inferences, taken together, permit a trier of fact to link the plaintiffs injury to a product defect attributable to the manufacturer or seller. A plaintiff may establish these elements through the use of various forms of circumstantial evidence, including evidence of (1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in similar products that may negate the possibility of other causes, (4) the age of the product in relation to its life expectancy, and (5) the most likely causes of the malfunction.” Id., 139-41.

Additionally, the court in Metropolitan Property & Casualty Ins. Co. laid out the evidentiary burden that a plaintiff must establish: “[N]ot only must there be sufficient evidence to support each required inference, but the evidence also must be sufficient for the trier of fact to conclude, after considering all of the evidence presented and all reasonable inferences to be drawn therefrom, that the manufacturer is more likely than not responsible for the plaintiffs harm. [63 Am. Jur. 2d 96, Products Liability § 54, (2010)] (‘Although proof may be made by circumstances alone, the plaintiff is required to establish that the facts and circumstances, together with all appropriate inferences, give rise to the conclusion with reasonable certainty that the defect in a product [attributable to the manufacturer] proximately caused the plaintiffs injury. That is, the evidence must be sufficient to tilt the balance from possibility to probability.’). When the evidence is not sufficient to support such a finding, and such a finding essentially would require speculation by the trier of fact, the case cannot properly be submitted to the jury. ” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 149.

In Metropolitan Property & Casualty Ins. Co., the court stated that “[w]hether a plaintiff in this state may use the malfunction theory when the product is still available for inspection but the plaintiff nevertheless is unable to produce direct evidence of a specific defect is a question that we need not resolve . . . .” Id., 132 n.4. Although the vehicle in the present case was physically available for inspection, most of the engine compartment and many critical components were destroyed by the fire. Morris’ report illustrates the condition of the plaintiffs vehicle upon his inspection. Morris stated that the engine compartment was “badly consumed by fire .... [T]he engine manifold was completely burnt away ... as well as the fuel rail and all associated parts that went along with that area were damage [d]. The hoses were all burned away as well as the injectors were very loose and just sitting on top of the engine. . . . [T]he top of the injectors, even in the engine housing, axe melted away. . . . [T]he positive and negative battery cables were compromised .... [T]he area where the battery and fuse box would be housed was completely destroyed as well.”

I believe that the fire that consumed the plaintiffs vehicle is the type of malfunction our Supreme Court described as “that [which] damages or destroys much, if not all, of the product’s components.” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 131-32. Because of the missing engine components in the engine compartment, Morris went to a Mazda dealership to examine a similar model for purposes of comparison. On the basis of the extensive damage to the part of the vehicle that allegedly malfunctioned, it would be especially difficult for the plaintiff to present direct evidence of a specific defect. Accordingly, I would consider whether the plaintiff has presented sufficient evidence for a jury to infer (1) whether the vehicle fire was the type of harm that ordinarily does not occur in the absence of a product defect and (2) whether the alleged defect most likely existed at the time the product left the defendants’ control. See id., 139-40.

In Metropolitan Property & Casualty Ins. Co., our Supreme Court noted that the first element of the malfunction theory is based on the doctrine of res ipsa loquitur, stating that “when a relatively new product fails to perform its intended function, the fact that the product failed may be said to speak for itself and provide support for an inference that the product was defective.” (Internal quotation marks omitted.) Id., 135. The plaintiff testified in his deposition that he purchased the vehicle only a month before the fire and that he did not have any mechanical issues prior to the fire. Significantly, the vehicle had less than 3000 miles on its odometer. “The occurrence of an accident a short time after sale is circumstantial evidence of product malfunction.” 2A American Law of Products Liability (3d Ed. 2008) § 31:25, p. 34. Jurors could use their common knowledge that new automobiles, in normal use, do not self-ignite to infer that such self-ignition would not occur in the absence of a product defect. See Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., supra, 35 Conn. Sup. 691 (inference of defect in television set permitted when witness saw flames emanating from television set because “television sets, in normal use, do not self-ignite”). The inference of a malfunction can “also be established with circumstantial evidence of a malfunction, such as difficulties with the product at or near the time of the accident . . . .” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 141-42. Here, immediately prior to the fire and explosion, the plaintiff smelled gasoline inside the cabin of the vehicle, prompting him to pull the vehicle over to the side of the highway. Again, jurors could infer that the strong odor of gasoline detected in the passenger compartment immediately preceding the engine fire would not occur absent a product defect. In Metropolitan Property & Casualty Ins. Co., our Supreme Court lists five types of circumstantial evidence that can be used to establish the elements of the malfunction theory. Id., 141. In the present case, the evidence of the history and use, the maimer of the alleged malfunction, and the age of the vehicle, all could be used by a jury to infer that the vehicle fire would not have occurred absent a defect. Therefore, I believe that there is a genuine issue of material fact as to whether the vehicle fire was of a kind that ordinarily occurs as a result of a product defect.

For the second element of the malfunction theory, the plaintiff must present evidence that any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller. The plaintiff must “negate other factors that might account for an alteration of the product after sale, including improper use, modification, tampering or improper maintenance .... A plaintiff need not conclusively eliminate all possible causes of a product defect but must only negate reasonably possible secondary causes.” (Citations omitted; internal quotation marks omitted.) Id., 143. In the present case, there are no apparent secondary causes for the fire that would require the plaintiff to present evidence to negate them, such as modification to the vehicle after it was purchased. The plaintiff stated that after purchasing the vehicle he had not opened the hood until the time of the fire. The plaintiff testified that he drove the vehicle under normal conditions to commute to and from his place of employment. The vehicle had been purchased only a month prior to the fire and had only 2800 miles on the odometer. “When a product malfunctions when it is new, the inference that the malfunction resulted from a defect attributable to the manufacturer is likely to be stronger than when the product is older because of the diminished possibility of other causes in the case of the newer product.” Id., 144. “[C]ase law generally supports limiting the [malfunction theory] to new or nearly new products, in the absence of additional evidence linking the product defect to the manufacturer.” Id., 147 n.15. In the present case, there is circumstantial evidence that would allow a jury to infer that any defect most likely existed at the time the vehicle left the defendants’ control. Therefore, I believe that there is a genuine issue of material fact as to whether the alleged defect existed at the time the vehicle left the defendants’ control.

For the foregoing reasons, I believe that the plaintiff has established a prima facie case under the malfunction theory. At trial, the court should be permitted to determine whether the evidence is sufficient to “support each inference by a preponderance of the evidence before submitting [the] case to the jury . . . .” Id., 148.

Ill

I further believe that the plaintiff need not present expert testimony regarding the allegedly defective condition of the vehicle. Review of whether expert testimony is required is plenary. Our Supreme Court has recognized that expert testimony is not required in all product liability actions. Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 217-18, 694 A.2d 1319 (1997). “Connecticut courts . . . have consistently stated that a jury may, under appropriate circumstances, infer a defect from the evidence without the necessity of expert testimony.” Id., 218. In Metropolitan Property & Casualty Ins. Co., our Supreme Court stated that in malfunction theory cases, “[i]f lay witnesses and common experience are not sufficient to remove the case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case.” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 141.

Our Supreme Court has also recognized that “expert testimony ... is required only when the question involved goes beyond the field of the ordinary knowledge and experience of the trier of fact. . . . The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters. . . . We note that expert testimony has not been required to show: negligent boat operation ... or detrimental effects of marijuana. . . . [S]ee also Ciarlelli v. Romeo, 46 Conn. App. 277, 283, 699 A.2d 217 (citing cases concluding expert testimony not required to prove: effect of operating gasoline station on traffic safety; injuries sustained on plaintiffs property were caused by defendant’s blasting; negligence in failing to erect porch railing; fence erected around blasting area insufficient to prevent injuries; obscenity of certain materials for minors), cert. denied, 243 Conn. 929, 701 A.2d 657 (1997). Indeed, in Marquardt & Roche/Meditz & Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn. App. 412, 426, 812 A.2d 175 (2003), the Appellate Court concluded that expert testimony was not required to demonstrate the difficulty of backing a vehicle out of a parking space, noting instead that that question is one which our legislature expects all operators of motor vehicles to consider on a regular basis when using public streets.” (Citations omitted; emphasis added; internal quotation marks omitted.) Allison v. Manetta, 284 Conn. 389, 405-406, 933 A.2d 1197 (2007).

In support of the proposition that expert testimony was necessary in automobile defect cases like the present one, the trial court cited Predom v. Hadfield, Superior Court, judicial district of New Haven, Docket No. 419156 (January 26, 2001), in which the court granted the defendant’s motion for summary judgment because the plaintiff failed to produce an expert witness about the “exceptionally complicated nature and regulatory requirements regarding air bags . . . .’’Id. Other decisions of the Superior Court, however, have denied summary judgment after determining that, in the absence of expert testimony, the nature of some alleged defect is within the common knowledge and experience of ordinary consumers. See, e.g., DeBartolo v. Daimler Chrysler Corp., Superior Court, judicial district of New Haven, Docket No. CV-03-0482725-S (December 22, 2005) (40 Conn. L. Rptr. 503) (holding that plaintiff was entitled to present defect claim to jury without expert testimony where air bag failed to deploy upon moderate frontal impact and seat belt shoulder harness failed to restrain plaintiff); Vaccarelli v. Ford Motor Co., Superior Court, judicial district of Waterbury, Docket No. CV-99-0153308-S (July 6, 2001) (holding same where air bag deployed without impact).

Although automobile engines are complex, I believe that the nature of the facts in the present case fall within the common knowledge and experience of ordinary consumers. A juror, using only his or her common knowledge and experience could infer that a new vehicle that self-ignited under normal driving conditions was the kind of incident that ordinarily occurs as a result of a product defect attributable to the manufacturer or seller. To make such an inference, a juror need not understand the complexity of an automobile engine but can merely rely on his or her knowledge and experiences of the way motor vehicles operate. Because the malfunction theory alleviates the burden of the plaintiff to identify a specific malfunction, it is unnecessary for a juror to pinpoint exactly what mechanism or mechanisms within the engine caused the fire.

For the foregoing reasons, I would reverse the judgment of the trial court. Accordingly, I respectfully dissent.

       General Statutes § 52-572m (b) provides: “ ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.”

       Although the parties do not contest that the vehicle was new when purchased by the plaintiff, his complaint also alleges that the vehicle had 2800 miles on its odometer at the time of purchase. This allegation, however, is denied by the defendants in their answer. Also, for purposes of the motion for summary judgment, the defendants did not dispute that the plaintiff had driven approximately 2800 miles in the vehicle commuting to and from work.

       We recognize that if the plaintiff drove to and from work forty times and the drive was sixty miles each way, the total miles driven would equal 4800. Based on the undisputed mileage at the time of the fire, it is likely that the plaintiff made approximately twenty round-trips. Any possible discrepancy, however, is not relevant for purposes of our analysis.

       We note that, in his report, Morris stated that this opinion was based on his examination of an exemplar vehicle rather than the plaintiff’s vehicle because of the damage the plaintiffs vehicle had sustained in the fire.

       The record reveals that these were the only documents submitted by the plaintiff in opposition to the motion for summary judgment.

       The plaintiff acknowledged that he was “required to provide some form of evidence, including expert testimony, to quantify the precise product defect.” The evidence from Morris, however, was directed to causation of harm rather than to establishing “the precise product defect.”

       We need not determine for purposes of this appeal whether Morris was qualified to give an expert opinion on the defectiveness of the vehicle. It is clear that he stated he was not offering such an opinion in this case.

       The plaintiff has not appealed from the court’s denial of his motion to reargue.

       The defendants argue that the plaintiff failed to raise the applicability of the malfunction theory before the trial court and that, therefore, we should not consider it on appeal. In this appeal, the plaintiff for the first time, argues that his evidence meets the “factors” for establishing a product liability claim pursuant to the malfunction theory of product liability, as articulated by our Supreme Court in Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 133-35, 25 A.3d 571 (2011). As set forth in this opinion, however, the plaintiff in this case did not make that claim in opposition to the defendants’ motion for summary judgment but instead based his opposition to the defendants’ motion on the theory that he had “provided sufficient evidence that the vehicle at issue harbored a defective design and/or improper installation of automotive parts that ultimately caused a car fire and, subsequently, the [plaintiffs injuries.” In his opposition, the plaintiff relied on the investigation, analysis and reports by his expert, Morris, as to causation of harm rather than alleging the absence of any direct evidence. In the absence of any perceived need to do so, he did not mention or rely on the malfunction theory in opposing the defendants’ motion for summary judgment. Therefore, the court had no occasion to consider it prior to rendering summary judgment.
      Because we conclude that the plaintiff did not raise the malfunction theory in the trial court prior to its rendering summary judgment, we decline to consider its application on appeal. See generally Billboards Divinity, LLC v. Commissioner of Transportation, 133 Conn. App. 405, 409-11, 35 A.3d 395 (declining to consider argument on appeal that was not raised before trial court in opposing motion for summary judgment), cert. denied, 304 Conn. 916, 40 A.3d 783 (2012); Hodgate v. Ferraro, 123 Conn. App. 443, 452, 3 A.3d 92 (2010) (plaintiff cannot ambush trial court by arguing on appeal theory not raised in opposition to motion for summary judgment); cf. Murphy v. EAPWJP, LLC, 306 Conn. 391, 399, 50 A.3d 316 (2012) (“[i]t is well established that a claim must be distinctly raised at trial to be preserved for appeal”); Tompkins v. Freedom of Information Commission, 136 Conn. App. 496, 511, 46 A.3d 291 (2012) (“It is fundamental that claims of error must be distinctly raised and decided in the trial court before they are reviewed on appeal. As a result, Connecticut appellate courts ‘will not address issues not decided by the trial court.’ ”); Przekopski v. Zoning Board of Appeals, 131 Conn. App. 178, 189, 26 A.3d 657 (“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . The requirement that [a] claim be raised distinctly means that it must beso stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial — after it is too late for the trial court ... to address the claim — would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” [Emphasis in original; internal quotation marks omitted.]), cert. denied, 302 Conn. 946, 30 A.3d 1 (2011).

       The defendants further argued that Lewis v. North American Philips Corp., supra, Superior Court, Docket No. CV-91-0315792-S, was distinguishable.

       See John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 605, 821 A.2d 774 (“whether the plaintiff has established a prima facie case is a question of law, over which our review is plenary” [internal quotation marks omitted]), cert. denied, 264 Conn. 919, 828 A.2d 617 (2003).

       In Metropolitan Property & Casualty Ins. Co., our Supreme Court indicated that it had not yet “examined the precise contours of those circumstances in which this principle might apply” but recognized that this court and decisions of the Superior Court “have used the ‘malfunction theory’ of products liability to permit a jury to infer the existence of a product defect that existed at the time of sale or distribution on the basis of circumstantial evidence alón e." Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 133.

       The court in Metropolitan Property & Casualty Ins. Co. also stated that the plaintiff in a malfunction theory case must, as a threshold matter, “present sufficient evidence to support a finding that the product, and not some other cause apart from the product, was more likely than not the cause of the plaintiffs injury.” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 140 n.9. In the present case, based on the nature of the alleged malfunction, there is sufficient evidence for a jury to determine that the product itself caused the plaintiffs injuries, not some other independent cause.

       When asked in his deposition by the defendants whether he could rule out arson as the cause of the vehicle fire, Morris replied in the negative. The defendants argue that because the plaintiff has not offered evidence to negate arson as the cause of the fire, he cannot satisfy the second element of the malfunction theory. Moras’ answer to that question in the negative does not mean that arson is a reasonably possible secondary cause of the fire. At trial, if the evidence presented suggests that arson was such a cause, then the plaintiff has the burden of presenting sufficient evidence to negate it. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 142-43.

       The defendants argue that the plaintiff must establish sufficient evidence of the five types of circumstantial evidence listed by the Supreme Court in Metropolitan Property & Casualty Ins. Co., namely, the history and use of the vehicle, the manner in which the product malfunctioned, similar malfunctions in similar products, the age of the product in relation to its life expectancy and the most likely causes of the malfunction. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 140-41. In that case, the court explicitly states that “[a] plaintiff may establish these elements through the use of various forms of circumstantial evidence, including evidence of . . . [listing five types of circumstantial evidence].” (Emphasis added.) Id. It is clear therefore that a plaintiff is not required to present evidence of each type of circumstantial evidence, but merely enough evidence from any combination of the five types from which a jury could make both inferences under the malfunction theory.

       S eeAckerly & Brown, LLP v. Smithies, 109 Conn. App. 584, 587-88, 952 A.2d 110 (2008) (“The determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law. . . . Accordingly, our review is plenary.” [Citation omitted.]); Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 136-37, 907 A.2d 1220 (2006) (“we note that the court’s determination of whether expert testimony was needed to support the plaintiffs claim of negligence . . . was a legal determination, and, thus, our review is plenary”); St. Onge, Stewart, Johnson & Reens, LLC v. Media Croup, Inc., 84 Conn. App. 88, 92, 851 A.2d 1242 (“because the defendant’s challenge to the trial court’s refusal to direct a verdict raises a question of law about the necessity for expert testimony, our review is plenary”), cert. denied, 271 Conn. 918, 859 A.2d 570 (2004).

       Although this authority is not binding, I agree that the nature of some alleged defects in automobile defect cases is within the common knowledge and experience of ordinary consumers.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    WORTH CONSTRUCTION COMPANY, INC. v. DEPARTMENT OF PUBLIC WORKS
    (AC 33699)
    Gruendel, Lavine and Borden, Js.

      Argued September 6
    officially released November 6, 2012

      Robert M. Shields, Jr., with whom was Kenneth J. Bartschi, for the appellant (plaintiff).

      George Jepsen, attorney general, with whom was Drew S. Graham, assistant attorney general, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Worth Construction Company, Inc., appeals from the judgment of the trial court in favor of the defendant, the state department of public works. The plaintiff contends that the court erroneously found that the defendant did not waive its claim to liquidated damages. We affirm the judgment of the trial court.

The relevant facts found by the court are as follows. On May 29, 2001, the plaintiff entered into a contract with the defendant to construct additions and renovations to Engelman Hall at Southern Connecticut State University for the sum of $33,497,050. The contract contained, inter alia, a liquidated damages clause that authorized the defendant to assess liquidated damages of $3000 per calendar day that the plaintiff failed to complete the project “within the [c]ontract [t]ime.” The term “contract time” is defined in the contract as “[t]he period of time allotted in the [c]ontract ... for [substantial [completion of the [w]ork . . . ,” Although the contract originally specified a period of 1068 calendar days for substantial completion, the parties subsequently executed a change order whereby an additional 394 calendar days were permitted. The plaintiff thus was required to attain substantial completion of the work within 1462 days, which period culminated on June 12, 2005. It is undisputed that the plaintiff reached substantial completion on August 25,2005, seventy-four days after June 12, 2005.

In July, 2007, the plaintiff commenced a breach of contract action against the defendant, alleging that the defendant failed to pay a balance of $1,434,068.87. In response, the defendant filed an answer, three special defenses and a three count counterclaim. Relevant to the present appeal is the first count, in which the defendant averred that because the plaintiff “caused the [p]roject to suffer a delay of [seventy-four] calendar days,” it was entitled to liquidated damages “at the daily rate of $3000 for a total of $222,000.” A bench trial followed, at the conclusion of which the court found in favor of the defendant on both the plaintiffs complaint and the defendant’s counterclaim for liquidated damages. The court awarded the defendant $222,222 in liquidated damages, and this appeal followed.

On appeal, the plaintiff challenges only the court’s award of liquidated damages. It claims that the court’s finding that the defendant did not waive its claim to said damages is clearly erroneous. We disagree.

It is well established that “[w]aiver is a question of fact.” AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622,866 A.2d 582 (2005). Accordingly, our review of a trial court’s finding thereon is governed by the clearly erroneous standard. Lehn v. Marconi Builders, LLC, 120 Conn. App. 459, 465, 992 A.2d 1137 (2010). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 849, 817 A.2d 683 (2003).

The following additional facts are relevant to the plaintiffs claim. After the plaintiff belatedly attained substantial completion of the work specified in the contract, the defendant’s director of project management, Scott Jellison, notified the plaintiff via certified mail, on October 17, 2005, that “[p]er the [g]eneral [c]onditions [s]ection 00700 of your contract, liquidated damages will be assessed for each day beyond the date given for substantial completion of the contract according to the contract time. Pursuant to the contract, [liquidated [d]amages will be assessed at the rate of $3000.00 per day for each day beyond the date for [substantial [completion. Pursuant to the contract . . . [the plaintiff] was required to attain [substantial [completion by June 12,2005. Substantial [c]ompletion was not attained until August 26, 2005. Since [the plaintiffs] contract obligations were not met, this is to notify you that the [defendant] may assess liquidated damages at the rate of $3000.00 for each day beyond June 12,2005, [through] August 26, 2005.”

On November 22, 2005, the defendant’s project manager, Randy Daigle, completed a “liquidated damage assessment field report” form. In so doing, Daigle miscalculated the period of time in which the plaintiff was to attain substantial performance. Although it is undisputed that the plaintiff was required to reach substantial completion of the work within 1462 days, Daigle erroneously indicated that the “total days allowed” was 1552. As a result of that mistake, Daigle concluded that because the plaintiff attained substantial completion within 1536 days, no days were “subject to liquidated damages.” He, thus, checked the box for “I do not recommend [liquidated damages to be assessed” in the project manager’s recommendation portion of the field report form. Kenneth Quimby, the defendant’s supervising project manager, approved Daigle’s field report on May 4, 2006. On that same date, Daigle submitted a “field evaluation report” that contained an identical miscalculation of the total days allowed for the plaintiff to attain substantial completion.

At trial, Daigle testified that he had miscalculated the total days allowed for substantial completion under the contract. He explained that he mistakenly included “the punch list” period of ninety days in his calculations, which resulted in his calculation of 1552 days instead of 1462. Daigle further testified that his recommendation not to assess liquidated damages was predicated on that miscalculation, and he agreed that the calculations contained in Jellison’s October 17, 2005 letter to the plaintiff were accurate.

On appeal, the plaintiff asserts that the defendant “waived liquidated damages through the actions of . . . Daigle.” It is well established that waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); C. R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 86, 919 A.2d 1002 (2007). “Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . .” (Citation omitted; internal quotation marks omitted.) AFSCME, Council 4, Local 704 v. Dept. of Public Health, supra, 272 Conn. 623.

As our Supreme Court has explained, “[a] necessary element to waiver is the requisite knowledge of the right. . . . Waiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it.” (Citations omitted.) Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 27, 392 A.2d 966 (1978). “[W]here one lacks knowledge of a right there is no basis upon which a waiver of it can rest.” (Internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972). Accordingly, “[t]o determine the presence of waiver, there must be evidence of intelligent and intentional action by the petitioner of the right claimed to be waived. ... It must be shown that the party understood its rights and voluntarily relinquished them anyway. . . . Each case should be considered upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the party that is waiving its rights.” (Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, 262 Conn. 813, 823, 817 A.2d 628, on remand, 80 Conn. App. 432, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004).

The record in the present case plainly indicates that Daigle, at the time that he prepared the field reports at issue, lacked knowledge that the defendant had the right to assess liquidated damages against the plaintiff. Due to his miscalculation of the “total days allowed” to attain substantial completion, he concluded that the defendant was not entitled to assess any such damages. Daigle testified — and the trial court found in its memorandum of decision — that, but for that mistake of fact, his calculation would have agreed with Jellison’s October 17, 2005 letter to the plaintiff notifying it that it was subject to liquidated damages due to its failure to attain substantial completion as required under the contract. Our Supreme Court has held that “[t]he basic conception of a waiver is that it is intentional; it cannot be established by a consent given under a mistake of fact.” Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 418, 165 A. 211 (1933); cf. Reynolds v. Reynolds, 121 Conn. 153, 157, 183 A. 394 (1936) (no finding by trial court that party against whom waiver was asserted “was laboring under a misapprehension of his rights”). The record is bereft of evidence indicating that Daigle intelligently and intentionally waived the claim to liquidated damages.

In addition, we are mindful that the conduct of the parties is relevant to our waiver analysis. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 58, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009); see also New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 388, 677 A.2d 1350 (1996); Hensley v. Commissioner of Transportation, 211 Conn. 173, 179, 558 A.2d 971 (1989). The contract entered into by the plaintiff provided that it would be subject to liquidated damages in the amount of $3000 per calendar day if it failed to attain substantial completion by the specified date. Because it is undisputed both that the plaintiff was required to attain substantial completion within 1462 days, or by June 12, 2005, and that it did not do so until August 25, 2005, its exposure to liquidated damages was obvious. Furthermore, the plaintiff received Jellison’s October 17, 2005 letter notifying it that it was subject to liquidated damages due to its failure to attain substantial completion as required under the contract prior to Daigle’s preparation of the field reports at issue. In light of the foregoing, we concur with the trial court that Daigle’s field reports erroneously indicating 1552 total days allowed to attain substantial completion “contained a mathematical error which should have been obvious to [the plaintiff] on its face.” At oral argument before this court, the plaintiffs counsel stated that he “can’t disagree” with that assessment.

The plaintiff nevertheless relies on Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 205 A.2d 780 (1964), to support its claim of waiver. Jenkins involved an inter-spousal tort claim by a couple, with an insurance policy issued in New York, who had an automobile accident in Connecticut. Id., 252. At issue was whether a certain New York statute disclaiming liability in such instances was applicable. Id., 253. Weeks after the accident occurred, the attorney for the plaintiffs wife informed the defendant insurance company that “there were legal questions as to coverage in interspousal actions where a policy was written in New York and an accident occurred in Connecticut, and that no additional information would be furnished the defendant’s investigators unless it was understood that the defendant would accept coverage of the wife’s claim.” Id., 256. Thus, the defendant at that time was on notice of a possible question as to whether it was in fact hable. In response, the defendant wrote to the wife’s attorney and “agreed to pay, within the limits of . . . [the] policy and subject to its provisions, any final judgment which was rendered against the insured . . . arising out of the accident.” (Internal quotation marks omitted.) Id. Months later, after learning “of the seriousness of [the wife’s] injuries and the extent of her medical bills,” the defendant sent a subsequent letter to the attorney disclaiming coverage and stating that it was not waiving any claim as to the exclusion of liability under New York law. Id., 256-57. Although the trial court found that there was no waiver “because it did not appear that the defendant had any certain knowledge of its rights”; (internal quotation marks omitted) id., 257; under New York law, our Supreme Court concluded otherwise. Id., 258. The court reasoned that, because the wife’s attorney had notified the defendant that a legal question existed as to the defendant’s liability to provide coverage, the defendant was aware “of its right to claim that the New York insurance law denied coverage and of the possible, if not probable efficacy of such a claim.” Id. The court emphasized that “[i]n order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy.” Id., 257-58.

The present case is distinguishable from Jenkins. The record indicates that, at the time that he completed his reports, Daigle was unaware that a possible claim for liquidated damages existed against the plaintiff. Due to his miscalculation of the total days allowed to reach substantial completion, he lacked knowledge that the defendant possessed a potential claim against the plaintiff. Moreover, that mistake of fact precluded Daigle from intelligently and intentionally waiving such a claim.

Waiver “involves the idea of assent, and assent is an act of understanding. This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them.” (Internal quotation marks omitted.) Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185,193, 602 A.2d 1007 (1992). This is not a case in which Daigle understood that the defendant had a right to pursue liquidated damages against the plaintiff, but declined to do so; rather, the record indicates that Daigle was unaware that the defendant possessed such a right. On the particular facts and circumstances of this case; see Krevis v. Bridgeport, supra, 262 Conn. 823; and indulging every reasonable presumption in favor of the court’s ruling, we conclude that the court’s finding that the defendant did not waive its claim to liquidated damages is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Substantial completion” is defined in the contract as “[t]he stage in the progress of the [w]ork when the [w]ork or designated portion thereof is sufficiently complete in accordance with the [c]ontract [d]ocuments so the [o]wner can occupy or utilize the [w]ork for its intended use.”

       The parties attribute the award of $222,222, rather than $222,000, to a typographical error. In its appellate brief, the plaintiff states that “[t]he $222 error is not material to this appeal.”

       The plaintiff raises no claim with respect to the court’s ruling in favor of the defendant on its complaint.

       A punch list generally is a list of items that a contractor is required to complete or to repair before final payment becomes due. See FCM Group, Inc. v. Miller, 300 Conn. 774, 783, 17 A.3d 40 (2011).

       Although Daigle was copied on Jellison’s October 17, 2005 letter to the defendant, he testified at trial that “being out in the field I’m not in the office all the time . . . and I get a tremendous amount of paperwork cc’d to me on all projects, and I didn’t go through my inbox in time to — and I didn’t notify him of my [report] and he didn’t notify me he was doing this letter. ... I wasn’t in the office to receive [Jellison’s letter] in the time that I was drafting up this [liquidated damage assessment field report].”

       In light of our conclusion that the court’s finding is not clearly erroneous, we do not address the issue of whether Daigle was authorized to waive a claim for liquidated damages on behalf of the defendant.


author: BEAR, J.

text:
    SANDY D. MCRAE v. SCOTT A. MCRAE
    (AC 33889)
    DiPentima, C. J., and Lavine and Bear, Js.
    Argued September 21
    officially released November 6, 2012

      Matthew J. O’Keefe, with whom, on the brief, was Joseph M. Busher, Jr., for the appellant (plaintiff).

      Scott A. McRae, pro se, the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Sandy D. McRae, appeals from the judgment of the trial court, Hon. Herbert Barall, judge trial referee, granting the motion of the defendant, Scott A. McRae, to modify periodic alimony payable to the plaintiff. On appeal, the plaintiff claims that the trial corut improperly (1) based its decision on the defendant’s present earnings rather than his earning capacity, (2) modified alimony despite the defendant’s failure to proffer evidence of a substantial change in circumstances, (3) failed to maintain a parity of income and (4) lowered the defendant’s weekly alimony payments predicated on the ordered arrearage payments. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issues on appeal. On October 5,2009, the court, Hon. JohnR. Caruso, judge trial referee, rendered judgment dissolving the marriage of the parties. The court valued the defendant’s business at $144,000, but had considerable difficulty valuing the plaintiffs business because she did some of her business in cash and through bartering. The court stated that it was dividing the parties’ total assets equally. The court made a finding, on the basis of the evidence presented, that the plaintiff had an annual earning capacity of $50,000, and the defendant had an annual earning capacity of $100,000. The court ruled that alimony was to be modifiable as to amount because it was unsure of how successful either business would be, and it explained that if there was a substantial change in the circumstances of either party, a motion for modification could be filed. The court ordered the defendant to pay to the plaintiff the sum of $500 per week for the first three years following the judgment of dissolution and, thereafter, to pay $250 per week for the following seven years. The court also explained that it recognized that the defendant’s annual “income [was] a moving target but [that] the orders that [it was] entering [were] based upon [$50,000 and $100,000]. If they differ substantially then within that ten year frame [then] the orders are modifiable if there’s a substantial change.” The court also stated: “By the way, if you look at the numbers for the first three years [of alimony] assuming nothing changes . . . you have parity of income. ... I don’t normally do that . . . .”

The defendant’s attorney asked Judge Caruso for clarification regarding the alimony amount because the defendant expected to earn only $65,000 in 2009. The court stated that if the defendant’s earning capacity turned out to be other than $100,000, counsel could seek a modification. Following the court’s judgment of dissolution on October 5, 2009, the defendant filed a motion to modify alimony on October 8, 2009. The court ruled on this motion, and others, on March 24, 2010, denying, inter alia, the requested modification that that court stated had been filed only “three days” after judgment. (Emphasis in original.) Shortly thereafter, on March 29, 2010, the defendant filed another motion to modify. That motion was not ruled on by the court. On April 25, 2011, the defendant filed another motion to modify, claiming that his financial situation had deteriorated further.

Following six days of hearings on the defendant’s motion to modify, as well as on other motions that are not the subject of this appeal, Judge Barall issued a decision granting the motion to modify. The court explained: “Judge Caruso actually found Mr. McRae had an earning capacity of $100,000 and he had — and he found that Mrs. McRae had an earning capacity of [$50,000]. He also had a clause in there that [if] that wasn’t the earning capacity . . . the parties could . . . come to court and seek to modify it. He also found the [defendant’s] business worth about $145,000.1 have— always have [been] leery if that was the value, just from my accounting background .... But ... I think he was talking more about the capacity [to] earn and your capacity to earn.

“Well, reality set in, according to both of your last affidavits. And I’m going on the basis of the affidavits, but also on the basis of your income tax returns for the year 2010. And, essentially, I find that, Mr. McRae, yours is closer to $50,000, and yours [Mrs. McRae] is closer to $20,000. That’s a substantial difference. And so I am going to modify the order . . . effective to the last filing of the motion to modify . . . .”

The court then ordered alimony reduced to $75 per week and it ordered the defendant also to pay $75 per week on the arrearage that had accumulated. The court stated that the defendant had been paying the plaintiff approximately $150 per week for quite some time and that this was a reasonable amount based on the defendant’s net income of approximately $600 per week. The court ended its decision by explaining: “That’s the decision of the court. As I said, I don’t expect anybody to be 100 percent happy [with] that, but nobody’s happy earning the amounts of money that they’re earning and obviously did earn. And, basically, I looked at the taxes for last year. That’s a whole year. You know, you can have ups and downs, but neither party was receiving any income anywhere near [what] was predicted. So much for predictions. I will tell you, this court, certainly in the last year and a half, has made no decisions finding people’s earning capacity. There was a time when I could pretty well predict what a person’s capacity was, based upon their skills and the economy. We can’t even — who knows what’s happening with the stock market today; it may be down or up and the yo-yo will go up and down for some time. So, I wish you both luck.”

Following the court’s decision, the plaintiff, on August 15, 2011, filed a motion to reargue, claiming that the court had faded to find a substantial change in circumstances to warrant a modification of alimony and that the court failed to maintain a parity of income as anticipated by the dissolution judgment. Judge Barall denied that motion on September 8, 2011, explaining that after he had examined the parties’ tax returns and their testimony, he found that there had been a substantial change in circumstances because neither party was earning anything close to what Judge Caruso had projected to be their earning capacity. This appeal followed.

I

On appeal, the plaintiff first claims that the trial court improperly based its decision to modify alimony on the defendant’s present earnings rather than his earning capacity, which was the measure utilized by the dissolution court. Essentially, the plaintiff argues that the court faded to find a substantial change in circumstances, and, instead, simply utilized a different measure to determine alimony, namely, the defendant’s current earnings rather than his earning capacity. We are not persuaded.

We review the court’s judgment granting a motion to modify alimony payments under an abuse of discretion standard. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 372, 999 A.2d 721 (2010).

“To obtain a modification [of alimony], the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Internal quotation marks omitted.) Bruno v. Bruno, 132 Conn. App. 339, 345-46, 31 A.3d 860 (2011), quoting Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994).

The plaintiff argues that the court “erred in this case by applying the wrong legal standard. Rather than applying the test from the October 5, 2009 dissolution judgment with regard to earning capacity, Judge Barall simply stated that over the preceding several years he has decided not to use this standard and therefore decided the case based upon present, reported earnings.” We are not persuaded.

In considering the defendant’s motion to modify alimony, Judge Barall conducted six days of hearings, heard substantial testimony and received many exhibits. He stated that he took into consideration the evidence presented and concluded that there had been a substantial change in circumstances. Specifically, Judge Barall explained: “Judge Caruso actually found Mr. McRae had an earning capacity of $100,000 and he . . . found that Mrs. McRae had an earning capacity of [$50,000]. He also had a clause in there that [if] that wasn’t the earning capacity . . . the parties could . . . come to court and seek to modify it. . . . Well, reality set in, according to both of your last affidavits. And I’m going on the basis of the affidavits, but also on the basis of your income tax returns for the year 2010. And, essentially, I find that, Mr. McRae, yours is closer to $50,000, and yours [Mrs. McRae], is closer to $20,000. That’s a substantial difference. And so I am going to modify the order, effective to the last filing of the motion to modify . . . .”

After reviewing the court’s decision, we conclude, on the basis of the preceding language, that the court reviewed the decision of the dissolution court, set forth the findings of the dissolution court as to the parties’ earning capacities at the time of the dissolution and then concluded that the parties’ earning capacities were significantly lower than that set forth by Judge Caruso. Accordingly, after reviewing the court’s decision, we are not persuaded by the plaintiffs contention that, when considering whether there had been a substantial change in circumstances, the court used an improper standard by failing to consider the parties’ current earning capacities as compared to their previous earning capacities as determined by the dissolution court.

II

The plaintiff claims that the court improperly modified the defendant’s alimony obligation despite the defendant’s failure to proffer evidence of a substantial change in circumstances. We are not persuaded.

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When, as in this case, the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted. ... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They have chiefly to do with the needs and financial resources of the parties. ... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential.” (Internal quotation marks omitted.) Bruno v. Bruno, supra, 132 Conn. App. 345-46, quoting Borkowski v. Borkowski, supra, 228 Conn. 734-38.

The plaintiff argues that there was no evidence of a substantial change in circumstances because “[t]he defendant’s [current] financial affidavit showed no change from the 2009 financial affidavit considered by Judge Caruso.” On the one hand, the plaintiff argues that the court did not use the parties’ earning capacities to determine whether there had been a substantial change in circumstances, but, on the other hand, she argues that the court did not compare current financial affidavits with previous financial affidavits, thereby looking at earnings rather than earning capacity. Although we agree that the evidence shows no significant change in the defendant’s actual income, as we concluded in part I of this opinion, the court found a substantial change in the parties’ earning capacities, not in their actual incomes. Accordingly, we conclude that there is no merit to this claim.

Ill

The plaintiff also claims that the court improperly failed to maintain a parity of income. She argues that the dissolution court designed its financial package so that the income of the parties was in parity. She contends that Judge Barall was required to assure that the parties’ incomes remained in parity. We conclude that the court was not required to maintain a parity of income in setting forth a modified alimony award.

“[0]nce a party has met his or her burden under either § 46b-86 (a) or (b), the court then should apply the factors of [General Statutes] § 46b-82 to fashion a new alimony award. . . . [0]nce [a change in circumstances has been proven under either § 46b-86 (a) or (b)] a uniform application of the § 46b-82 factors is warranted and should be applied to a request for a postdissolution modification of alimony whether brought under either subsection .... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. . . . More specifically, these criteria, outlined in ... § 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. . . . Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . . . are relevant to the question of modification.” (Citation omitted; internal quotation marks omitted.) Dan v. Dan, 137 Conn. App. 728, 732-33, 49 A.3d 298 (2012).

Here, the plaintiff claims only that Judge Barall was required to maintain a parity of income because the dissolution court had entered an alimony order resulting in a parity of income based bn the amounts it determined to be the parties’ earning capacities. She makes no claim that the court failed to apply the § 46b-82 factors when modifying the defendant’s alimony obligation. Because our law clearly requires the court to apply the factors set forth in § 46b-82 when determining the modified amount of alimony; see id.; Borkowski v. Borkowski, supra, 228 Conn. 736-37; Schwarz v. Schwarz, 124 Conn. App. 472, 484-85, 5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525 (2010); and there is no claim that the court failed to do so in this case, we find no merit to the plaintiffs claim that the court was required to maintain a parity of income for the remainder of the initial three year period after finding a substantial change in circumstances warranting a modification of alimony. Such a mandatory requirement would be inconsistent with the clear dictates of our law.

rv

The plaintiffs final claim is that the court improperly lowered the defendant’s weekly alimony payments predicated on the ordered arrearage payments. She argues that “reducing current alimony obligations to take into account the defendant’s arrearage has the same effect as simply eliminating the arrearage and thus has the same effect as expressly forgiving the arrearage.” The defendant argues that the plaintiff is “purporting] to read Judge Barall’s mind as to how he predicated his alimony award.” He argues: “Judge Barall . . . concluded alimony should be $75 per week. Separately, Judge Barall noted that a $75 payment on the arrearage would pay off the arrearage in seven plus years, and ‘essentially, will be what [the defendant] has [been] paying for some time, about $150 per week.’ . . . When one considers that the arrearage amount . . . was approximately $29,000, then 7.5 years of payment at $75 per week equals $29,250. This is clearly separate from Judge Barall’s determination of weekly alimony.” (Citation omitted.) We agree with the defendant.

“Retroactive modifications of support orders are ordinarily impermissible. . . . With the exception of the period following service of a motion for modification, [n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification . . . .” (Citation omitted; internal quotation marks omitted.) Favrow v. Vargas, 231 Conn. 1, 40-41, 647 A.2d 731 (1994). “The power of the trial court to modify orders of support and alimony is . . . a creature of statute. General Statutes § 46b-86. Nothing in our statute regarding modification of alimony and support can be construed as authorizing retroactive modification. Such a construction has been expressly disavowed by our Supreme Court.” Trella v. Trella, 24 Conn. App. 219, 221, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991). Simply stated, “alimony already accrued may not be modified.” (Internal quotation marks omitted.) Mihalyak v. Mihalyak, 30 Conn. App. 516, 520, 620 A.2d 1327 (1993).

Recognizing that orders for alimony cannot be modified retroactively, with an exception for that period following service of a proper motion, we must determine whether the action taken by the court in this case amounts to a retroactive modification. In making her claim, the plaintiff primarily relies on this court’s decisions in Clark v. Clark, 127 Conn. App. 148, 13 A.3d 682, cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011), and Evans v. Taylor, 67 Conn. App. 108, 786 A.2d 525 (2001). In both of these cases, this court stated that the “failure to include an arrearage in a final order of dissolution has the same effect on the party entitled to the pendente lite arrearage as it would have had if the court had expressly modified or forgiven the pendente lite order at the time of dissolution; it strips that party of a vested property right and constitutes an impermissible retroactive modification of the pendente lite orders in violation of § 46b-86.” Clark v. Clark, supra, 158-59, quoting Evans v. Taylor, supra, 117-18. The plaintiff contends, on the basis of these cases, that “even when there is no express forgiveness or modification of an arrearage, the failure to adequately address the arrear-age in a court order may well constitute an improper and unauthorized retroactive modification of alimony.” Although we agree with the plaintiff’s contention based on the holdings of Clark and Evans, we are not persuaded that there was such a failure by the court in this case.

The plaintiff posits that the following statements by the court demonstrate that it lowered the defendant’s alimony obligation so that the defendant’s entire payment to the plaintiff would be $150 per week, thereby effectively eliminating the arrearage: “So, the $75 will be — essentially, will be what [the defendant] has been paying for some time, about $ 150 a week. And if that’s— and assuming that he’s earning about net after deductions about $600-and-something-plus per week, that’s a reasonable amount to pay on that arrearage.” The plaintiff also points to the following language in the court’s decision on her motion to reargue: “The court found an arrearage but did not find the defendant in contempt for his failure to pay because of lack of capacity. The court entered an arrearage payment so that the defendant would pay $150 per week in total for both the alimony and the arrearage payment. This leaves the parties in a comparable position considering both of their incomes.” We are not persuaded that the record evinces an improper retroactive modification of alimony by the court.

In addition to the language relied on by the plaintiff, in determining the specific payments for alimony and the defendant’s arrearage, the court also stated: “And so what I’m going to be doing, essentially, is I’m going to reduce alimony to $75 per week. I’m [also] going to order $75 per week on the arrearage. It will take about seven years to pay that arrearage.” The court then ordered alimony reduced to $75 per week, and it ordered the defendant also to pay $75 per week on the arrearage, thus demonstrating that the court specifically considered the modified alimony amount and the arrearage payment amount separately. On this basis, we are unable to conclude that the court committed error by improperly issuing an order that, effectively, modified alimony retroactively.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s financial orders were upheld on appeal. See McRae v. McRae, 129 Conn. App. 171, 20 A.3d 1255 (2011).

       Judge Barall originally misstated that the plaintiffs earning capacity had been found to be $76,000, but he later corrected this misstatement.

       Because we are not persuaded that Judge BaraU did not consider the parties’ earning capacity when rendering his decision on the defendant’s motion to modify, we need not determine whether he necessarily had to use earning capacity as the proper measure when determining whether there had been a substantial change in circumstances.

       See footnote 3 of this opinion.

       General Statutes § 46b-82 (a) requires in relevant part that the court “consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       The plaintiff does not claim that an alimony award of $75 per week in this case was an abuse of the court’s discretion.

       “The court . . . has discretion respecting the manner in which [an] arrearage shall be paid. This would not preclude the court, at any time, if the plaintiffs financial circumstances were to change, from making appropriate adjustments in the amount and manner of payment. The fact that hypothetically the court’s installment order appears to stretch out the arrearage into the distant future does not convert a prospective order into a retroactive modification.” Moore v. Moore, 187 Conn. 589, 590, 447 A.2d 733 (1982).

       We also note that the plaintiff did not raise this claim in the trial court prior to filing her appeal, nor did the plaintiff seek an articulation from the court after filing her appeal.


author: PER CURIAM.

text:
    ANTHONY J. PELLECCHIA, ADMINISTRATOR (ESTATE OF ANTHONY E. PELLECCHIA) v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (AC 33806)
    Robinson, Espinosa and Sheldon, Js.

      Argued September 14
    officially released November 6, 2012

      Jason L. McCoy, for the appellant (plaintiff).

      Giovanna Tiberii Weller, with whom were Lauren J. Taylor and, on the brief, Richard L. Street, for the appellees (named defendant et al.).

      Scott R. Ouellette, for the appellee (defendant town of Killingly).
   Opinion

PER CURIAM.

The plaintiff, Anthony J. Pellecchia, administrator of the estate of Anthony E. Pellecchia, appeals from the judgment of the trial court dismissing his claims against the defendants Connecticut Light and Power Company, Northeast Utilities and Northeast Utilities Service Company on the ground that it lacked subject matter jurisdiction to adjudicate those claims because they were not brought within the applicable statute of limitations, General Statutes § 52-555, and they could not be saved by the accidental failure of suit statute, General Statutes § 52-592. We have examined the record on appeal and considered the briefs and arguments of the parties and conclude that the judgment of the trial court should be affirmed. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision as a statement of the facts and the applicable law on the issue. See Pellecchia v. Connecticut Light & Power Co., 52 Conn. Sup. 435, 54 A.3d 1080 (2011). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

The plaintiff also appeals from the trial court’s ruling granting the motion to strike filed by apportionment defendant town of Killingly (town). “The granting of a motion to strike . . . ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 242, 994 A.2d 106 (2010). The trial court has not rendered judgment on the stricken claims against the town, and there is, thus, no final judgment as to those claims. See Breen v. Phelps, 186 Conn. 86, 89, 439 A.2d 1066 (1982). Because the lack of a final judgment implicates the subject matter jurisdiction of this court to hear an appeal, the plaintiffs appeal as to his claims against the town must be dismissed. See General Statutes §§ 51-197a and 52-263; Practice Book § 61-1; Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007).

The appeal is dismissed for lack of a final judgment as to the granting of the motion to strike. The judgment is affirmed in all other respects.

       The plaintiffs apportionment complaint also named as defendants Quin-nebaug Valley Emergency Communications, Inc., and the East Killingly Volunteer Fire Department Company. Those apportionment defendants are not parties to this appeal.

       In his brief, the plaintiff acknowledges that the trial court’s ruling on the motion to strike does not constitute an appealable final judgment. Additionally, the record does not indicate that the town filed a motion for judgment following the granting of its motion to strike.