text:
    National Casualty Insurance Company v. Carl J. Stella
    (10122)
    Dupont, C. J., Daly and Foti, Js.
    Argued November 5, 1991
    decision released January 28, 1992

      Thomas E. Stevens, for the appellant (plaintiff).

      Peter J. Zagorsky, for the appellee (defendant).
   Daly, J.

The plaintiff insurance company appeals from the trial court’s judgment declaring that it had a duty to indemnify the defendant, Carl J. Stella, against the tort claim of a third party. The plaintiff asserts that the trial court improperly found a waiver of its right to deny coverage for the defendant. We affirm the judgment of the trial court.

The following facts were found by the trial court. On or about January 19, 1986, the plaintiff issued a manufacturers and contractors liability policy to the defendant. It was a one year policy effective from January 19, 1986, to January 19, 1987. By its terms, the policy covered only claims arising out of the defendant’s siding installation business. The defendant admitted that he had not read the policy.

On or about August 27, 1986, the defendant was excavating property owned by a third party. The excavation work was done in connection with the installation of a swimming pool that was to be built by a contractor other than the defendant. The owner of the property where the defendant was excavating was injured while loading equipment onto the defendant’s trailer. The owner instituted an action against the defendant. The defendant properly notified the plaintiff about the pending litigation arising from the injury to the property owner.

In a letter dated May 8, 1987, the plaintiff initially warned the defendant that “coverage may not be afforded.” A representative of the plaintiff later telephoned the defendant advising him, however, that this claim was in fact covered by the policy. In a letter dated July 9, 1987, the plaintiff again stated that the policy covered the claim against the defendant. The plaintiffs letter also requested payment of the $250 deductible required by the terms of the defendant’s policy with the plaintiff because it had already spent $307.81 while handling the claim. The defendant paid the $250 requested by the plaintiff. Then on November 23,1987, the plaintiff informed the defendant by letter that the claim by the property owner was not covered under this policy and that he was entitled to the return of his $250 deductible. The plaintiff secured counsel to represent the defendant, but the defendant did not know that the plaintiff reserved its rights against the defendant. On January 10, 1991, the plaintiff warned the defendant that the claim by the property owner was greater than $15,000, the policy limit. The letter advised the defendant that because he would be personally liable for any amount greater than $15,000, he should retain other counsel. The defendant testified that on the basis of the plaintiffs conduct he thought that it would defend and indemnify him against the claim by the property owner.

The only issue presented in this appeal is whether the trial court properly concluded that the plaintiff waived its right to disclaim coverage.

Waiver involves the “intentional relinquishment of a known right.” Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 257, 205 A.2d 780 (1964). There cannot be a finding of waiver unless the party has “both knowledge of the existence of the right and intention to relinquish it.” Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 645, 220 A.2d 254 (1966). Waiver can be either express or may consist of acts or conduct “ ‘from which waiver may be implied.’ ” Andover v. Hartford Accident & Indemnity Co., 153 Conn. 439, 445, 217 A.2d 60 (1966). “An insurer waives its right to disclaim based upon a breach of a policy condition if it has knowledge of the facts giving rise to the disclaimer, but elects to continue its defense.” National Union Fire Ins. Co. v. Mastroni, 754 F. Sup. 269, 272 (D. Conn. 1990), citing Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 302 A.2d 284 (1972). Whether the plaintiff’s conduct constituted a waiver was a question of fact. This court, therefore, will uphold the trial court’s decision unless we find that it was clearly erroneous. Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991).

The defendant seasonably notified the plaintiff of the claim by the property owner. The defendant’s notice to the plaintiff stated that the claim arose during an excavation job and not while the defendant was engaged in his siding business. The defendant had knowledge of its right to disclaim coverage because the policy did not cover claims unrelated to the defendant’s siding business. The plaintiff in its initial contact with the defendant stated that the claim may not be covered by this policy. Then, on July 9, 1987, almost one year after the date of the accident, the plaintiff instructed the defendant to send a payment of $250 to cover the deductible because it was going to handle the defendant’s claim. The plaintiff’s subsequent actions established an implied waiver of its right to disclaim. Its letter indicating that in fact the claim against the defendant was covered by the policy and its request and acceptance of the $250 deductible established its intention to release its right to disclaim coverage and its decision to go forward with the defense of the claim.

Our Supreme Court in Jenkins v. Indemnity Ins. Co., supra, 258, found a waiver of an insurance company’s right to disclaim coverage where the company originally acknowledged that the policy covered the claim and also investigated the claim. In that case, a husband and wife from New York were involved in a car accident while traveling in Connecticut. The wife sued the husband in Connecticut and obtained a judgment against him. At the time of the accident, a New York statute excluded coverage of interspousal claims from automobile insurance policies. The insurance company was aware that this law would possibly allow it to disclaim coverage. Approximately two months after it acknowledged coverage, the company sought to disclaim coverage on the basis of the New York statute. The court found that the insurance company had sufficient knowledge to conclude that the New York statute would apply to an accident in Connecticut involving New York residents and thereby waived its right to invoke the protection of the New York statute when it acknowledged coverage of the wife’s claim.

In the present case, the plaintiff knew of the circumstances surrounding the claim against the defendant, yet acknowledged coverage and sought compensation for expenses incurred in handling the claim. The plaintiff’s subsequent letter of November 23, 1987, which sought to disclaim liability, did not terminate its earlier waiver of its right to disclaim coverage. See id., 258-59.

On the basis of our review of the evidence, we conclude that the trial court’s decision was not clearly erroneous. Therefore, we will not disturb the trial court’s findings.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Jean McCurdy et al. v. State of Connecticut
    (9902)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued October 4, 1991
    decision released January 28, 1992

      Harold L. Rosnick, with whom, on the brief, George P. DAmico, for the appellant (plaintiff estate of John Mollico).

      Robin L. Wilson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (state).
   O’Connell, J.

This is the claimant estate’s appeal from the decision of the compensation review division of the workers’ compensation commission denying an award of specific benefits under the workers’ compensation law. General Statutes § 31-308 (b) (13).

The claimant’s objections are subsumed under the general issue of whether it was entitled to a specific award of workers’ compensation benefits for permanent partial disability despite payment to the deceased of specific benefits for temporary total disability from-the time of his injuries until his death.

The record discloses that on November 21,1983, John Mollico, also known as John McCurdy (the deceased), injured his back while in the employ of the state of Connecticut. Pursuant to General Statutes § 31-307, he was paid temporary total disability benefits from the date of his injury until December 24,1987, when he died of unrelated causes. On October 15,1987, his physician rated his injury as a 70 percent permanent partial disability of the lower back. On October 20,1987, the physician issued a supplemental report expressing his opinion that Mollico’s lower back had reached maximum medical improvement. He remained totally disabled, however, because of terminal cancer which had been diagnosed in September of 1987.

On December 15,1987, the deceased sought an award of permanent partial disability benefits based on his physician’s reports of October 15 and 20. The workers’ compensation commissioner refused to award permanent partial disability benefits because the deceased remained totally disabled as a result of cancer. Following the decedent’s death, Jean McCurdy sought an award for the 70 percent permanent partial disability of her late husband. The estate of the decedent also notified the state that it too claimed that it was entitled to the 70 percent permanent partial disability award in the event that Jean McCurdy was not found to be a dependent widow. The commissioner found that Jean McCurdy was neither the decedent’s presumptive widow nor a dependent in fact. The commissioner further found that the decedent’s estate was not entitled to the unmatured permanent partial disability benefits. Accordingly, the claims of both Jean McCurdy and the estate of the decedent were dismissed.

We commence our analysis by noting that the compensation review division properly denied the motion to correct the commissioner’s findings because the commissioner is the trier of the facts; Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989); Cleveland v. U.S. Printing Ink, Inc., 21 Conn. App. 610, 617, 575 A.2d 257 (1990), aff’d, 218 Conn. 181, 588 A.2d 194 (1991); and any conclusions that he reaches must stand unless they result from an incorrect application of the law or from an inference illegally drawn from facts he found. Cleveland v. U.S. Printing Ink, Inc., supra. After a review of the record, we conclude that the findings and conclusions of the commissioner were supported by the evidence.

We next turn to the claimant’s contention that it was entitled to unmatured permanent partial disability benefits. The resolution of this claim involves the distinction between temporary total disability payments under General Statutes § 31-307 and a permanent partial disability award pursuant to § 31-308 (b). The purpose of temporary total disability benefits is to provide compensation for loss or impairment of earning capacity; Ancona v. Norwalk, 217 Conn. 50, 55, 584 A.2d 454 (1991); whereas an award of specific permanent partial disability benefits is intended to compensate the injured employee for the incapacity and loss of use of a portion of his or her body for the remainder of his or her life. Levanti v. Dow Chemical Co., 218 Conn. 9, 13-14, 587 A.2d 1023 (1991); see also J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), pp. 151-54.

The respondent state argues that the claimant’s demand violates the rule against double compensation, which “prohibits concurrent payment of specific indemnity benefits for permanent partial impairment under § 31-308 (b) and benefits for total incapacity under § 31-307 as a result of the same incident.” Paternostro v. Edward Coon Co., 217 Conn. 42, 49, 583 A.2d 1293 (1991); see also Gurliacci v. Mayer, 218 Conn. 531, 570, 590 A.2d 914 (1991); Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991). In the present case, the claims for temporary and permanent benefits both arose from the same incident, i.e., the lower back injury sustained by the deceased while in the state’s employ. A person cannot be both partially and totally incapacitated at the same time. Paternostro v. Edward Coon Co., supra, 48-49.

Had the vicissitudes of the deceased’s life taken a different path and had he not been stricken with cancer, he probably would have been awarded specific indemnity benefits for his permanent partial disability after he reached his maximum degree of improvement on October 20,1987. If such an award had been made and the deceased had died before payment thereof had been completed, those entitled to inherit would have received the unpaid balance less any payments made subsequent to the date on which maximum improvement had been attained. In this regard, such an award has all the earmarks of a statutory award of liquidated damages and the death of the employee does not relieve the employer from carrying out the award by paying any unpaid balance to the estate of the employee. Forkas, Admrx. v. International Silver Co., 100 Conn. 417, 421, 123 A. 831 (1924). Such was not the scenario in the present case. No award of specific benefits for permanent partial disability had been made prior to the employee’s death so there is nothing that can pass to his estate. The claimant appears to be under the impression that reaching maximum degree of improvement acts as an automatic award of permanent benefits. This is not the law. The claimant’s reliance on Forkas, Admrx. v. International Silver Co., supra, is inappropriate because in Forkas an award of permanent partial disability had been made prior to the employee’s death and he was receiving payments thereon at the time of his death.

Established case law requires affirmation of the compensation review division’s decision. The claimant, however, argues that the present state of our case law violates the equal protection clause of the fourteenth amendment to the United States constitution and article first, § 20, of our state constitution. This issue was not discussed by the compensation review division in its decision, and, therefore, we decline to review it.

The decision is affirmed.

In this opinion the other judges concurred.

       The claimants before the compensation review commission were (1) Jean McCurdy, the claimed widow of the deceased and (2) the estate of John Mollico, also known as John McCurdy, deceased. The commissioner found that Jean McCurdy was not a presumptive dependent widow, nor a dependent in fact and was, therefore, not entitled to any unmatured award. Because the commission’s findings regarding Jean McCurdy’s status were not challenged on appeal, the sole appellant before this court is the estate of the deceased. In this opinion, claimant refers to the estate.

       General Statutes § 31-308 (b) provides in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than fifty dollars weekly . . . for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks.”

       The claimant’s claims are more specifically stated as follows: (1) Did the commissioner and the compensation review division err in concluding that the decedent’s estate is not entitled to the award for specific benefits under Connecticut General Statute § 31-308 (b) (13) despite the fact that the decedent had reached maximum medical improvement prior to his death? (2) Did the workers’ compensation commissioner and the compensation review division err in refusing to grant two paragraphs of the claimant’s motion to correct the finding? (3) Does the commissioner’s finding that specific benefits do not accrue to the benefit of the decedent’s estate violate the equal protection clause of the constitutions of the United States and the state of Connecticut?

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred . . . .”

       See footnote 4, supra.

       See footnote 2, supra.

       General Statutes § 31-308 (c).

        Bassett v. Stratford Lumber Co., 105 Conn. 297, 305, 135 A. 574 (1926), reversed in part the holding in Forkas to the extent that Forkas held that “the unmatured part of such award belongs to the estate of the deceased employee.”


author: Landau, J.

text:
    State of Connecticut v. Stanford L. Frye
    (9099)
    O’Connell, Foti and Landau, Js.
    Argued September 19, 1991
    decision released January 28, 1992

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky III, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Stanford Frye, appeals from a judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug dependent in violation of General Statutes § 21a-278 (b). On appeal the defendant claims that (1) there was an inadequate canvass of his waiver of his right to counsel, and (2) the trial court improperly refused to give the jury a limiting instruction regarding evidence of his criminal record. We disagree.

The jury could reasonably have found the following facts. On May 1, 1989, at approximately 6:15 p.m., Bridgeport police officers Victor Diaz and Peter Gelozin saw the defendant and a second male, Marvin Need-ham, attempting to flag down passing cars in front of buildings six and seven in Father Panik Village. The officers further observed the defendant pass the contents of a plastic bag to Needham. As the officers approached, the two males began to walk away in different directions. The officers then saw the defendant drop a plastic bag while he was attempting to leave the area. The bag contained what was later identified as twenty-nine vials of crack cocaine. The officers apprehended the defendant a few feet from the discarded bag. No drugs were found on his person.

Immediately after jury selection had been completed, the defendant’s court-appointed trial counsel sought to withdraw from the case, asserting that the defendant had indicated in a note that he was dissatisfied with his attorney’s “preparation and knowledge about the case and the investigation that was done,” and that the defendant would like personally to cross-examine all witnesses himself. The court then attempted to clarify the nature of the defendant’s request with respect to the right to cross-examine the witnesses. The following colloquy occurred.

“The Court: I’m not certain what you mean or what your client means by he wants the right to cross-examine witnesses. I don’t understand what he means that he wants to totally take over the defense of this case himself and act as his own counsel from start to finish or he wants some rights in addition to those he normally would have to be represented by counsel by joining in the cross-examination. So—

“The Defendant: Yes, Your Honor. My position concerning my trial at this point as it was in the beginning that I would like to represent myself concerning this matter and exercise myself to examine witnesses, cross-examine witnesses. I would, however, like counsel to advise and consult, because I do plan on taking the stand and I would need counsel to question me if I do take the stand.” The court then explained to the defendant that he had a right to waive his constitutional right to counsel knowingly and intelligently and to represent himself, and began to question the defendant to determine whether he did in fact want to waive his right to counsel.

At the conclusion of the canvass, the court requested that the defendant confer with counsel in an attempt to resolve the problems the defendant believed existed regarding his representation. The defendant was instructed to take as much time as he needed. Upon returning to the courtroom, defense counsel indicated that he and the defendant had reached an accord. They decided that the defendant would cross-examine the police officers, and the determination as to who would examine or cross-examine the remaining witnesses would be made at the time each witness was to testify. The decision as to who would present final argument also would be made during the trial.

The defendant first claims that the trial court’s inquiry concerning the waiver of his right to counsel was inadequate. We conclude that the court never actually canvassed the defendant concerning a waiver of counsel because the defendant never indicated to the court that it was his desire to waive his right to counsel.

We begin our analysis by noting that the defendant never did in fact waive his right to counsel nor was he denied the effective assistance of counsel. He made no unequivocal request to represent himself without the assistance of counsel nor did he request that his present counsel be replaced. His initial colloquy with the trial court can most accurately be construed as a request to act as cocounsel. This is not a request to proceed pro se. Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), cert. denied, 469 U.S. 966, 105 S. Ct. 366, 83 L. Ed. 2d 302 (1984); United States v. Bennett, 539 F.2d 45, 49 (10th Cir.), cert. denied, 429 U.S. 925, 97 S. Ct. 327, 50 L. Ed. 2d 293 (1976). The defendant in effect requested what has been recognized as “hybrid representation. ”

“ ‘[U]nder such a “hybrid representation” arrangement, both [the defendant] and his attorney would conduct portions of his trial, while [the defendant] retained ultimate control over defense strategy.’ Accord 2 LaFave & Israel, Criminal Procedure (1984) § 11.5 (f); comment, ‘The Right to Appear Pro Se: Developments in the Law/ 59 Neb. L. Rev. 135, 156-57 (1980); note, ‘The Accused as Co-Counsel: The Case for the Hybrid Defense/12 Val. U.L.Rev. 329, 339(1978). . . .Theoretically, hybrid representation can be considered as the ultimate product of a criminal defendant’s ‘partial waiver’ of both his Faretta [v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1985)] right to self-representation and his right to assistance of counsel. 2 LaFave & Israel, supra.” State v. Gethers, 197 Conn. 369, 383, 497 A.2d 408 (1985). The defendant is permitted to exercise greater control over an increased number of trial proceedings than that to which he is constitutionally entitled while being permitted to retain the services of one schooled in trial practice.

A review of the record reveals that the defendant’s colloquy with the trial court was a request for “hybrid representation,” rather than a waiver of his right to counsel. The division of labor to which the defendant and his counsel agreed during the out-of-court conference, and the actual division of labor during the course of the trial, lead us to this conclusion. The defendant and his court-appointed counsel shared equally the responsibility of conducting the defendant’s trial. The defendant cross-examined Officers Diaz and Gelozin, conducted the direct examination of Officers Diaz, Gelozin and Convertito, and presented final argument to the jury. Trial counsel conducted the jury voir dire, the cross-examination of the state toxicologist, the direct examination of the defendant, the motion for judgment of acquittal, and the exceptions to the jury charge. The defendant’s initial colloquy with the court indicates that it was his intention from the outset that his attorney be more than merely an advisor and consultant. The defendant expressly stated that he wanted court-appointed counsel to conduct at least a portion of the trial, his direct examination.

We conclude that there was neither a waiver of the right to counsel nor any indication that the defendant was deprived of his constitutional right to counsel. Thus, we need not decide whether the trial court’s canvass of the defendant was adequate to ensure a knowing, intelligent and voluntary waiver of his right to counsel as required by the constitution.

The defendant next claims that the trial court denied him his constitutional right to a fair trial and due process of law by improperly refusing to give a limiting instruction in its charge to the jury concerning the use of the defendant’s criminal record. He argues that this issue is reviewable on the basis of an exception taken immediately after the jury charge or, in the alternative, under State v. Evans, 165 Conn. 61, 70, 372 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We disagree with the defendant’s second claim.

Practice Book § 852 sets forth the prerequisites for reviewing requests to charge and exceptions. The Practice Book provides that the court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. ” (Emphasis added.) Practice Book § 852. There was no written request to charge made in this case addressing how the jury could use the defendant’s criminal record. The defendant’s attorney, however, took an exception to the trial court’s charge and requested such an instruction immediately after the court’s charge to the jury. Specifically, he took exception to three portions of the trial court’s charge, the second of which addressed the absence of any mention by the court as to how the jury was to consider the defendant’s criminal record. The trial court denied the request. The defendants’ attorney again took an exception. This exception to the trial court’s charge did not properly preserve this claim for appellate review. Practice Book § 852 applies only where the trial court has misstated the applicable law or where there is ambiguity in the jury charge. It does not apply where there is a failure to instruct on something that was never requested in writing prior to the jury instructions. It cannot be used to cure a failure to file a written request to charge. Additionally, the defendant cannot prevail under State v. Evans, supra, and State v. Golding, supra, because he has failed to satisfy the third requirement of Golding, which requires that the defendant demonstrate that a “constitutional violation clearly exists and clearly deprived [him] of a fair trial.” State v. Golding, supra.

Prior to the presentation of the defendant’s case-in-chief, the defendant’s attorney addressed a motion in limine regarding the inadmissibility of the defendant’s prior convictions of robbery and larceny. The trial court ruled that it would allow the introduction of the prior offenses by name, and it noted the exception by the defendant’s attorney. The prosecution, however, made no mention of either offense. The defendant made the first mention of his criminal record in his own final argument to the jury.

The cornerstone of the defendant’s argument is that there is great temptation for the jury to consider evidence of prior misconduct as substantive evidence of guilt rather than merely as a means of impeaching the credibility of a witness. This tendency, the defendant argues, requires that the court give a limiting instruction to the jury regardless of how the information came to the jury’s attention. We do not accept this argument.

In closing argument, the defendant commented as follows. “Again, I’m not denying that this incident happened. It’s a fact that it happened. I’m not trying to paint you a picture that I have always been a businessman. You know, unlicensed barber as an upright citizen in society. I don’t know why the prosecutor didn’t bring my record up. I do have a record, a previous criminal record that establishes me as a person that has broken the law before. I’ve made a lot of mistakes in my life and I’m very regretful about them. So I’m not standing before you to try to paint a picture that I’m an angel or someone that doesn’t make mistakes.”

The defendant’s criminal record was not mentioned during the evidentiary phase of the trial when the defendant was testifying as a witness, but rather during the closing argument by the defendant himself.

Although the defendant may have commented on facts not in evidence, the proper question before us is not whether the defendant’s comments were proper or improper but rather whether the trial court, in refusing to give a limiting instruction, so far exceeded or abused its discretion as to warrant our granting a new trial. “The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful.” State v. Glenn, 194 Conn. 483, 493, 481 A.2d 781 (1984). Our inquiry is to determine whether the defendant was deprived of his constitutional right to a fair trial by the trial court’s failure to instruct the jury as requested. Id., 492.

“In determining whether the defendant was denied a fair trial we must view the . . . comments in the context of the entire trial.” State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987). The burden is on the defendant to prove that the remarks deprived him “of the opportunity for a fair trial and [that] the entire proceedings were tainted.” State v. Doehrer, 200 Conn. 642, 653-54, 513 A.2d 58 (1986); State v. Hamel, 14 Conn. App. 6, 9, 539 A.2d 603 (1988). We must determine whether the defendant’s remarks during closing arguments and the trial courts refusal to instruct the jury as to the application of the defendant’s prior criminal record, in light of all of the circumstances, including the trial court’s charge as a whole, were so egregious and so damaging to the defendant that they deprived him of a fair trial. State v. Couture, 194 Conn. 530, 562, 482 A.2d 300, cert. denied, 469 U.S. 1192, 105 S. Ct 967, 83 L. Ed. 2d 971 (1985). Applying the established rules to the case before us, we conclude that the defendant falls short of demonstrating an entitlement to a new trial. See State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983).

A review of the closing arguments reveals that the defendant’s statement has taken on an importance on appeal that it does not appear to have had at trial. The defendant’s comments, taken in the context of the entire trial, do not rise to the level of a denial of a fair trial. The remarks were a very small portion of the defendant’s closing argument; see State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985); intended to appeal to the jury and not to call attention to these specific acts. Because the defendant has failed to demonstrate that his remarks deprived him of the opportunity for a fair trial and that the entire proceedings were tainted, we conclude that he was not denied a fair trial. Therefore, no limiting instruction was required.

The judgment is affirmed.

In this opinion the other judges concurred.

       The note was never marked for identification nor was it entered into evidence.

       The following colloquy occurred: “The Court: Mr. Abbamonte, I understand that you and Mr. Frye have reached an accord as to how you wish to proceed. That Mr. Frye intends to act as his own counsel.
      “Defense Counsel: Yes, Your Honor. He wishes to act as his own counsel for purposes at least of cross-examining the police officers and we’ve agreed on that; as to other witnesses, we will decide at that time who will handle it. Also as to final argument, we will decide who will handle that. I have just explained to him what the court indicated to me, that only one of us can do one thing. We both can’t handle the argument, we both can’t cross-examine the same witness, but we can take turns. So I think you’ve agreed to that, Mr. Frye?
      “The Defendant: Yes, sir.”

       The defendant has no right to “hybrid representation” under either the state or federal constitution. State v. Gathers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). It is wholly within the trial court’s discretion to permit such representation. Id.

       A criminal defendant has the ultimate authority to make decisions concerning inherently personal rights of fundamental importance such as whether to plead guilty, waive a jury trial, testify in his or her own behalf, or take an appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983); Wainright v. Sykes, 433 U.S. 72, 93 n.1, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

       The exception was phrased as follows: “[Defense Counsel]: Secondly, this doesn’t appear in the charge, but when—and I wasn’t aware of it obviously until the defendant gave his final argument, but he indicated to the jury that he had a prior criminal record. This was the first time it was brought out. I would ask the court to instruct the jury as to how they are to consider that particular thing that it goes to his credibility and not to the fact that he’s guilty or innocent of the charge. I would—I don’t have the exact wording, but I’m sure Your Honor knows what it is. I would request that particular portion of the charge be given to the jury.”

       We note that even if the defendant had properly preserved this claim for review, we would find no reversible error. The defendant cannot rely on an admission which he himself introduced as a basis for reversal of his conviction. State v. Smith, 212 Conn. 593, 610, 563 A.2d 671 (1989); State v. Kinsey, 173 Conn. 344, 349, 377 A.2d 1095 (1977); State v. Anderson, 20 Conn. App. 271, 279 n.3, 566 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987).

       Were we to conclude that this oral request satisfied Practice Book § 852, we would render meaningless the requirement that trial counsel file a written request to charge prior to the trial court’s instructions to the jury.


author: Dupont, C. J.

text:
    State of Connecticut v. John Santiago
    (9582)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued September 19, 1991
    decision released January 28, 1992

      William T. Koch, Jr., special public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, Peter McShane, deputy assistant state’s attorney, and Kathryn St. Amand, law student intern, for the appellee (state).
   Dupont, C. J.

The sole issue of this appeal is whether the defendant’s warrantless arrest, for the misdemeanor of threatening in violation of General Statutes § 53a-62, was prohibited by the fourth amendment to the United States constitution. The resolution of this issue requires an analysis of whether the arrest occurred in or out of the defendant’s home.

The charge of threatening, which was the subject of the warrantless arrest, was not prosecuted. The trial court found that the warrantless arrest was legal because it was based on speedy information and there was probable cause for the arrest. The court, therefore, denied the defendant’s motion to suppress the evidence of a pipe containing narcotics residue found in a search of the defendant’s person shortly after the arrest. The defendant then pleaded nolo contendere to the crimes of possession of drug paraphernalia and possession of narcotics conditional on the right to appeal from the denial of his motion.

The facts as found by the trial court, and as stated by the parties, are not in dispute. The police were sent to the defendant’s home in March, 1989, in response to a report that he had threatened a neighbor with a handgun. After interviewing the neighbor and another person, an officer went onto a concrete covered porch, measuring approximately ten feet by four feet, leading directly to the doorway of the defendant’s basement apartment. The porch does not lead to any other apartment and the first floor apartment forms its roof. In response to the officer’s knock on the door, the defendant, bare chested and shoeless, opened the door and spoke to the officer, denying that he had threatened the neighbor. He refused to allow the officer to enter his apartment to search for a handgun without a search warrant. The officer ordered the defendant to remain in the doorway and then left the porch to speak with another officer. Subsequently, the officer returned to the porch and arrested the defendant, who was still standing in the doorway, for threatening the complainant. The officer stretched his arm beyond the plane of the threshold to seize the defendant, who had begun to retreat into his apartment, and effectuated the arrest. The officer’s feet were never inside the defendant’s apartment.

United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), and Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), are the two cases relied on in decisions that discuss the prohibitions of the fourth amendment when there has been a warrantless arrest in a home or an “almost-home” location.

In United States v. Santana, supra, the Supreme Court of the United States upheld a warrantless entry by the police that passed beyond the threshold of the defendant’s home. The entry was made to effectuate a warrantless arrest for a felony drug charge. The defendant’s exact position when she was first seen by the police was described in precise detail in footnote one of the decision. If she had taken one step forward, she would have been outside her home and with one step backward, she would have been in the vestibule of her residence. When she saw the officers approach, she retreated into her home and was seized and arrested within its vestibule. The court concluded that the threshold of her dwelling was a public place in which she had no privacy interest and that her retreat into her dwelling could not thwart an otherwise proper arrest. Id., 42. The trial court, in its oral decision, alluded to the Santana case when it determined that ‘the issue of the threshold is a bogus one”

In Payton v. New York, supra, the court held that even where there is probable cause to arrest a suspect for a felony, an officer may not enter a suspect’s home to effectuate that arrest absent exigent circumstances. The court stated that “[t]he Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined then when bounded by the unambiguous physical dimensions of an individual’s home .... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id., 589-90. (Citations omitted; internal quotation marks omitted.)

A warrantless arrest, whether for a misdemeanor or a felony, requires that the arrest be supported by probable cause. State v. Kaplan, 20 Conn. App. 183, 186, 565 A.2d 11 (1989). Even where there is probable cause for a warrantless arrest, however, a warrantless entry into the home to arrest for a felony must survive the test of exigent circumstances. State v. Guertin, 190 Conn. 440, 446-55, 461 A.2d 963 (1983). The trial court in the present case did not determine whether exigent circumstances as such existed. The court, however, concluded that the warrantless arrest was permissible under General Statutes § 54-lf (a) because it was based on the “speedy information of others” and implicitly concluded that the arrest occurred in a public place.

The defendant contends that whether exigent circumstances existed is irrelevant because his home could not be invaded to effect an arrest for a misdemeanor without violating the fourth amendment to the United States constitution. The state concedes that there were no exigent circumstances, but argues that Santana permits a warrantless arrest for a misdemeanor when the location of the arrest is the doorway of the defendant’s home. Thus, this case depends on whether the definition of home includes the porch leading to the defendant’s apartment. We must decide whether the defendant was arrested without a warrant in a public place or in an area that intruded into the privacy of his home. Neither the Connecticut Supreme Court or the Supreme Court of the United States has yet decided if fourth amendment protection should be accorded to an area such as a porch, attached to a home, in which a suspect has exclusive possession. This case, then, provides another example of the continuing problem of reconciling a warrantless arrest with the constitution. See note, “Warrantless Doorway Arrests—Preemption of Payton v. New York, ” 6 Hamline L. Rev. 585 (1983).

Exigent circumstances form an exception to the general rule that a warrantless entry into a dwelling may not be made for the purpose of making an arrest for the commission of a felony. “[CJourts have permitted warrantless home arrests for major felonies if identifiable exigencies, independent of the gravity of the offense, existed at the time of the arrest. . . . But of those courts addressing the issue, most have refused to permit warrantless home arrests for nonfelonious crimes. See, e.g., State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963, 970 (1983).” Welsh v. Wisconsin, 466 U.S. 740, 752, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). “The exception [of exigent circumstances for the making of an arrest without a warrant] is limited to the investigation of serious crimes; misdemeanors are excluded.” State v. Guertin, supra, 453. Although a violation of General Statutes § 53a-62 is a misdemeanor, its investigation may have been considered by the police as an investigation of a serious crime because of the alleged use of a gun. Because the state conceded a lack of exigent circumstances, we need not determine if the police were investigating a crime in the category of a misdemeanor or a felony, or if the concession itself was correct. We need only determine if the defendant had a legitimate expectation of privacy that society should protect in the location of his arrest.

Ever since the decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the “ ‘capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place.’ ” Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 1687, 109 L. Ed. 2d 85 (1990), quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). A legitimate, subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” Katz v. United States, supra, 361 (Harlan, J., concurring).

United States v. Santana, supra, concerned a suspect’s expectation of privacy while standing on the threshold of a doorway leading into her home, and concluded that there was no such expectation that society was prepared to recognize. A number of cases have discussed variations of the Santana theme, such as “on,” “over,” “in,” “upon” or “at” the threshold. See People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980); People v. Schreiber, 104 Ill. App. 3d 618, 432 N.E.2d 1316 (1982); State v. Patricelli, 324 N.W.2d 351 (Minn. 1982); State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982); see also W. LaFave, Search and Seizure (2d Ed.) 6.1 (e), pp. 587-93. We need not join them because we hold that the defendant was standing in an area in which he had an expectation of privacy, as opposed to the public threshold of his home, at the time of his arrest.

The United States Supreme Court has recognized that the home deserves scrupulous protection from government invasion. Payton v. New York, supra. The problem is that the boundaries of a home are not always clearly defined or unambiguous. See State v. Mooney, 218 Conn. 85, 93, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The test to determine whether the porch in this case was an area intricately bound to the home itself revolves around whether that porch is part of the curtilage, that is the land immediately surrounding and associated with the home. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).

“At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life’ . . . and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” (Citations omitted.) Oliver v. United States, supra, 180.

The case of United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), amplified the Oliver decision and further defined a home’s curtilage. The Dunn court determined that curtilage questions “should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, supra, 301; State v. Lipak, 21 Conn. App. 248, 256, 573 A.2d 323 (1990).

A sheltered porch, attached to a home, is an area intimately tied to the home itself, and an area in which domestic activity commonly occurs. A porch is intrinsically associated with both the sanctity of the home and the privacies of life. See Oliver v. United States, supra, 180; Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886). We hold that the defendant’s porch, in which he had exclusive possession, is as sacrosanct as the home itself for fourth amendment purposes. Other courts have similarly held that certain areas attached to the home are to be treated as though they are a part of the home. See United States v. Karagozian, 715 F. Sup. 1160 (D. Conn. 1989), aff'd, 914 F.2d 239 (1990) (back deck); Brown v. State, 392 So. 2d 280 (Fla. Dist. Ct. App. 1980), cert. denied, 454 U.S. 819, 102 S. Ct. 98, 70 L. Ed. 2d 89 (1981) (small back porch). Because we conclude that the defendant’s home included his porch, his warrantless arrest there was violative of the fourth amendment.

The judgment denying the defendant’s motion to suppress the evidence seized is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       If the arrest occurred outside of the home, the arrest would be valid under the fourth amendment because it is correctly conceded by the defendant that there was probable cause for it. United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976); Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970).

       General Statutes § 54-If (a) authorizes misdemeanor arrests without a warrant “when the person is taken or apprehended in the act or on the speedy information of others . . . .” General Statutes § 54-lf (b) governs warrantless arrests for felonies.

       The record does not indicate whether the defendant was searched inside his apartment, on his porch, or at police headquarters. If the defendant were searched inside his home or its curtilage as defined in this decision, the evidence would need to be suppressed under the exclusionary rule as violative of the fourth amendment. Payton v. New York, 445 U.S. 573, 110 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); see New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). If the defendant were searched at a place other than his home or its curtilage, the evidence would also require suppression under our state exclusionary rule as derived from article first, § 7, of the Connecticut constitution, because the taint resulting from the violation was not sufficiently attenuated from the initial entry into the home. State v. Geisler, 25 Conn. App. 282, 594 A.2d 985, cert. granted, 220 Conn. 918, 597 A.2d 342 (1991).

       General Statutes § 54-94a provides that a defendant may enter “a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure” and after the imposition of sentence may appeal the issue of “whether it was proper for the court to have denied the motion to suppress . . . .”

       We do not need to reach the question of whether, based on the factual circumstances known to the arresting officer, the warrantless arrest would have been upheld under General Statutes § 54-If (a) had it been made in a public place. See Clark v. Muzio, 40 Conn. Sup. 512, 516 A.2d 160 (1980); State v. Anonymous (1981-1), 37 Conn. Sup. 755, 436 A.2d 789 (1981).

       There are some decisions holding that although a defendant was standing in or on the threshold of his home, an area not ordinarily protected by an expectation of privacy, as discussed in United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), fourth amendment protection should nevertheless be accorded to him if his presence there was procured by the knock of the police on the door of his home, even if there is probable cause for the arrest, absent exigent circumstances. Duncan v. Storie, 869 F.2d 1100 (8th Cir.), cert. denied, 493 U.S. 852, 110 S. Ct. 152, 107 L. Ed. 2d 110 (1989); United States v. Crespo, 834 F.2d 267 (2d Cir.), cert. denied, 485 U.S. 1007, 108 S. Ct. 1471, 99 L. Ed. 2d 700 (1987); State v. Morse, 125 N.H. 403, 480 A.2d 183 (1984). One court has reasoned that if a suspect appears at the door of his home because of some act of the police, there has been a constructive entry of the home that would bar a warrantless arrest under the fourth amendment even if probable cause exists, absent exigent circumstances. United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985). These cases do not use the traditional analysis of “expectation of privacy” in a particular area as expounded by the Supreme Court of the United States. Instead, they analyze the facts in terms of whether the police were in “hot pursuit” of a suspect outside of the home as the police approached or, whether the suspect was in the home when summoned to the doorway by the police.

       We do not include in the definition of home, for the purposes of the fourth amendment, a porch that is shared with others. See United States v. Holland, 755 F.2d 258 (2d Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985).


text:
    Geneva M. Sampiere v. Joel S. Zaretsky et al.
    (9992)
    Foti, Landau and Heiman, Js.
    Argued November 8, 1991
    decision released February 4, 1992

      Beth A. Barrett, for the appellants (defendants).

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellee (plaintiff).
   Landau, J.

The defendants, Joel Zaretsky, an allergist, and his medical assistant, Francine Garafolo, appeal from the trial court’s judgment in favor of the plaintiff. The plaintiff was awarded $70,000 as against both defendants in a general verdict rendered by a jury. The trial court denied the defendants’ motion to set aside the verdict. On appeal, the defendants claim that the trial court improperly (1) refused to grant their motion to set aside the verdict which alleged that the plaintiff failed to establish by expert testimony a breach of the standard of care and proximate cause, (2) instructed the jury that it could find gross negligence against the defendants, (3) allowed nonexpert testimony on the issue of proximate cause, and (4) instructed the jury that future medical expenses were a proper element of damages. We agree with only the fourth claim and do not address the remaining claims in the opinion.

The jury could reasonably have found the following facts. On June 12, 1984, Garafolo, an employee of the named defendant Zaretsky, administered an allergy injection to the plaintiff at Zaretsky’s office in Ansonia. Garafolo injected the plaintiff with a dosage ten times greater than the patient’s prescribed dosage. The plaintiff suffered an allergic reaction consisting of increased body temperature, severe itching, diminished hearing, a rash and labored breathing. Zaretsky administered atarax and adrenaline to the plaintiff to restore her breathing to normal and to alleviate the remaining conditions. She remained in his office for the rest of the afternoon and was then driven home by Garafolo. Two and one-half years later, the plaintiff sought psychological treatment for the mental anguish she allegedly sustained as a result of this incident.

In her complaint, the plaintiff alleges that (1) both Zaretsky and Garafolo negligently faded to exercise the skill and care ordinarily exercised by those in their positions, (2) as a result of their negligence the plaintiff “was forced to incur further medical expense and sustained great mental and emotional pain and anguish,” and (3) as a further result of the defendants’ actions her “ability to carry on her life’s activities were severely curtailed and she continues to have a fear of any and all injections.” The complaint does not allege that the plaintiff will be forced to incur future medical expenses. Defense counsel unsuccessfully objected to the introduction of evidence of such expenses.

The defendant contends that because the plaintiff did not allege in her complaint that she would be forced to incur future medical expenses, the trial court improperly instructed the jury that it could award such damages. We agree.

“ ‘The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in [her] complaint. ... “A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.”. . .’ ” (Citations omitted.) Savin v. National Personnel Consultants, Inc., 4 Conn. App. 563, 566-67, 495 A.2d 1109 (1985); see also Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987); Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 542, 554 A.2d 757 (1989); Krattenstein v. Thomas, 7 Conn. App. 604, 610, 509 A.2d 1077 (1986).

Thus, the plaintiff cannot recover for something that was not specifically set out in her complaint. In her complaint, the plaintiff alleges only that she “was forced to incur further medical expense and sustained great mental and emotional pain and anguish.” (Emphasis added.) This allegation was phrased in the past tense, indicating that she sought recovery for medical expenses already incurred and that she had already sustained great mental pain and anguish. There is no indication in the language of the complaint that the plaintiff anticipates incurring future medical expenses or that she suffers continuing mental pain and anguish.

Our appellate courts have noted the importance and the significance of the use of a particular tense. In Connelly v. Doe, 213 Conn. 66, 68, 566 A.2d 426 (1989), the court examined an order stating “ ‘that an inquiry be made to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the Superior Court have been committed ....’” (Emphasis in original.) The court concluded that the language of the court order empaneling a grand jury investigation authorized investigation into past conduct only. Id. In Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 479 A.2d 1191 (1984), the court addressed the retroactive application of a newly enacted statute. The court ruled that the use of the phrase “has had” in the act, which is the present perfect tense of the word “have,” required application of the act to not only newly created distributorships but also to distributorships in existence at the time of the act’s passage. Id., 174-75. Relying on the well established rule of law, that words and phrases are to be construed according to the commonly approved usage of the language; General Statutes § 1-1 (a); Caldor, Inc. v. Heffeman, 183 Conn. 566, 570, 440 A.2d 767 (1981); the court concluded that “[t]he use of the present perfect tense of a verb indicates an action or condition that was begun in the past and is still going on or was just completed in the present.” Schieffelin v. Department of Liquor Control, supra, 175. And in Everett v. Ingraham, 150 Conn. 153, 156-57, 186 A.2d 798 (1962), the court examined the phrase “[w]hen an award of compensation shall have been made” (emphasis added) to determine whether the plaintiff was entitled to compensation for a work related injury that antedated the effective date of the act under which he was seeking compensation. The court noted that the phrase “shall have been,” which is in the future perfect tense, indicated that the act was intended to apply to any case in which the compensation award was made after the effective date of the act. Id.; see also LoRusso v. Hill, 139 Conn. 554, 558, 95 A.2d 698 (1953) (court examined effect of the future perfect phrase “shall have been given”); Hartford v. Suffield, 137 Conn. 341, 343-44, 77 A.2d 760 (1950) (court examined effect of the future perfect phrase “shall have resided”).

Because we are bound by the four corners of the plaintiff’s complaint, we must examine the specific language to determine the particular causes of action alleged. The tense used in the complaint dictates whether it encompasses past, present or future claims. Here, the allegations involving the plaintiff’s medical expenses were in the past tense, and thus encompassed medical expenses incurred only to the date of the complaint.

Our appellate courts have considered numerous cases in which a plaintiff sought future medical expenses. Such expenses have been awarded where they were alleged in the complaint and supported by the evidence at trial. For example, in Mulrooney v. Wambolt, 215 Conn. 211, 575 A.2d 996 (1990), the plaintiffs award of future medical expenses was upheld where she alleged that she had suffered and would continue to suffer injuries and that she had incurred and would incur medical and hospital expenses. In Healy v. White, 173 Conn. 438, 378 A.2d 540 (1977), the Supreme Court affirmed an award of future medical expenses where the complaint alleged that as a result of the injuries sustained, the plaintiff had incurred and would in the future incur medical expenses on behalf of the victim.

Additionally, trial courts have demonstrated an understanding of the difference between medical expenses that have been already incurred and those that will be incurred in the future. In Reilly v. DiBianco, 6 Conn. App. 556, 575, 507 A.2.d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986), the complaint alleged that the plaintiff was rendered comatose and suffered permanent brain damage. Because of the permanent nature of the injuries, the trial court, in its instruction to the jury regarding future medical expenses, stated that the medical expenses incurred by the defendant up to the time of trial and those further expenses likely to be incurred in the future could be included in the jury’s determination of damages, thereby distinguishing between the two types of damage awards. Id., 574-75. In Doyle v. Russell, 5 Conn. App. 480, 499 A.2d 1169 (1985), the trial court’s limitation of the plaintiff’s loss of earnings to one week was upheld on appeal. In his complaint the plaintiff alleged that “ ‘[a]s a result of the injuries, Mr. Doyle has not been [able] to fully attend to his employment and has lost income thereby.” Id., 481. We concluded that because this allegation failed to allege a loss of future earning capacity, the trial court properly refused to instruct the jury that it could award future medical expenses as part of any damage award. Id., 482. Here, as in Doyle, by alleging in the complaint that the plaintiff “was forced to incur further medical expenses,” the plaintiff explicitly limited her right of recovery to those expenses incurred prior to the trial.

Construing the allegations of the complaint in the light most favorable to the pleader; O’Connor v. Dory Corporation, 174 Conn. 65, 68-69, 381 A.2d 559 (1977); at most, the complaint alleges that the plaintiff has been forced to incur additional medical expenses to date. Even a broad reading of the complaint did not give the defendant notice of the additional issue. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Company, 193 Conn. 208, 223-24 n.16, 477 A.2d 988 (1984). Because the complaint failed to allege that the plaintiff will incur future medical expenses, the trial court improperly instructed the jury that it could award such expenses.

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

In this opinion the other judges concurred.

       The defendants are Joel Zaretsky and Francine Garafolo. Garafolo has since married. Although her married name is Mengold, we will continue to refer to her as Garafolo.

       The complaint consisted of two counts. The first count alleged negligence on the part of Joel Zaretsky and the second alleged negligence on the part of Francine Garafolo.

       The language of the enabling statute also limits the grand jury’s investigatory power to past conduct. General Statutes § 54-47 (a), in effect at the time, provided “an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed . . . within the judicial district . . . .” (Emphasis added.)

       The phrase “was forced to incur” is the grammatical equivalent of the term “incurred.”

       Because liability and damages are “inextricably interwoven,” we remand for a new trial on both liability and damages. See Fazio v. Brown, 209 Conn. 450, 457, 551 A.2d 1227 (1988).


author: Foti, J.

text:
    Yale University School of Medicine v. Frank McCarthy
    (9838)
    Daly, Foti and Heiman, Js.
    Argued October 29, 1991
    decision released February 4, 1992

      David M. Stanwicks, for the appellee (plaintiff).

      Tara B. Chiarelli, with whom, on the brief, was Joseph Chiarelli, for the appellant (defendant).
   Foti, J.

This appeal arises out of the plaintiff’s action to recover payment for medical services provided to the defendant. The defendant appeals from a directed verdict and a jury award in favor of the plaintiff in the amount of $3514.60, and from the trial court’s dismissal of his counterclaim. The defendant claims that the trial court improperly (1) granted the plaintiff’s motion to preclude the defendant’s introduction of expert testimony pursuant to Practice Book § 220 (D) due to the defendant’s failure to identify his experts prior to trial, and (2) dismissed the defendant’s counterclaim sua sponte. We affirm the judgment of the trial court with respect to the defendant’s first claim but reverse the court’s dismissal of the defendant’s counterclaim.

The relevant facts are as follows. The Office of Professional Services of the Yale University School of Medicine filed an action against the defendant in December, 1985, to recover money allegedly owed for medical treatment provided by the plaintiff. In his answer, the defendant asserted seven special defenses and a counterclaim alleging medical malpractice. The defendant failed to file with his counterclaim a certificate of good faith as required by General Statutes § 52-190a.

The plaintiff served the defendant with interrogatories on February 15,1989. One interrogatory requested disclosure of any expert witnesses who would testify at trial. The defendant objected to this interrogatory. The trial court overruled the defendant’s objection and ordered the defendant to respond by August 18,1989. The defendant failed to inform the plaintiff of the existence or identity of any expert witnesses and the court granted the plaintiff’s motion to preclude the defendant from introducing any expert testimony on his counterclaim at trial pursuant to Practice Book § 220 (D). The court subsequently denied the defendant’s motion to set aside this sanction. Additionally, the court dismissed the defendant’s counterclaim sua sponte for failure to file a good faith certificate pursuant to General Statutes § 52-190a.

I

The defendant first claims that the trial court abused its discretion in granting the plaintiff’s motion to preclude the introduction of expert testimony. The defendant argues that Practice Book § 220 (D) does not provide for exclusion of expert testimony if the contemplated expert is an agent of the opposing party. He maintains that neither prejudice nor unfair surprise can result from a failure to disclose the existence of an expert witness if the expert is the opposing party’s own employee. The defendant asserts that because he planned to call the operating surgeon and other treating physicians employed by the plaintiff, Practice Book § 220 (D) does not apply to this case. We do not agree.

Practice Book § 220 (A) provides that “[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial . . . .” It is within the trial court’s discretion to impose sanctions on a party that has failed to answer interrogatories requesting disclosure of any expert witnesses the party plans to call. Practice Book § 231. These sanctions may include exclusion of expert testimony at trial. Practice Book § 231 ;Mulrooney v. Wambolt, 215 Conn. 211, 219, 575 A.2d 996 (1990); Pool v. Bell, 209 Conn. 536, 540-42, 551 A.2d 1254 (1989); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106-107, 476 A.2d 1074 (1984).

The defendant attempts to distinguish an independently retained expert from an expert who is an agent or employee of the opposing party, such as a treating physician. In Perez v. Mount Sinai Hospital, supra, 517, the plaintiff similarly tried to draw a distinction between an independently retained expert and a treating physician. This court, however, upheld a directed verdict where the trial court excluded the expert testimony of the plaintiff’s treating physician because of the plaintiff’s failure to respond to interrogatories requesting disclosure of the identity of any expert witnesses. In that case, we stated: “The term ‘expert’ may be extended to ‘all persons acquainted with the science or practice in question.’ Bryan v. Branford, 50 Conn. 246, 248 (1882). Practice Book § 220 (A) (1) employs the term ‘expert witness’ and does not draw a distinction between treating and independent experts.” Perez v. Mount Sinai Hospital, supra, 518. Thus, pursuant to Practice Book § 220, a trial court may exclude expert testimony proffered by a party regardless of any agency relationship that may exist between the expert witness and the opposing party.

The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. Sturdivant v. Yale-New Haven Hospital, supra, 107. On appeal, that decision is subject only to the test of abuse of discretion. Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986). The salient inquiry is whether the court could have reasonably concluded as it did. Sturdivant v. Yale-New Haven Hospital, supra, 108. In this case, the defendant had ample opportunity to inform the plaintiff of the expert witnesses he planned to call at trial. The plaintiff first requested this information on February 15, 1989. When the defendant failed to respond, the court ordered him to do so by August 18, 1989. The defendant failed to comply with the court’s order. Finally, the court imposed sanctions on April 30, 1990, more than a year after the plaintiff’s first request for disclosure. We conclude that the trial court did not abuse its discretion in granting the plaintiff’s motion to preclude the introduction of expert testimony by the defendant.

II

The defendant’s second claim is that the trial court improperly dismissed his counterclaim because of his failure to file a certificate of good faith belief of negligence pursuant to General Statutes § 52-190a. The defendant maintains that the certificate requirement of § 52-190a does not apply in this case. We do not reach that issue, however, because we conclude that the trial court’s sua sponte dismissal of the defendant’s counterclaim was improper because of the absence of a motion to strike by the plaintiff.

General Statutes § 52-190a requires a plaintiff in a medical malpractice action to file a certificate of good faith evidencing that he or she has made a reasonable inquiry “to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” General Statutes § 52-190a. The purpose of this precomplaint inquiry is to discourage would-be plaintiffs from filing unfounded lawsuits against health care providers and to assure the defendant that the plaintiff has a good faith belief in the defendant’s negligence. LeConche v. Elligers, 215 Conn. 701, 710-11, 579 A.2d 1 (1990). The filing of a certificate is evidence that the plaintiff has conducted a reasonable inquiry. Id., 711.

Our Supreme Court has held that the filing of a good faith certificate may be viewed as essential to the legal sufficiency of the plaintiff’s complaint. Id. Thus, a plaintiff’s failure to file a certificate “renders the complaint subject to a motion to strike pursuant to Practice Book § 152 (1) for failure to state a claim upon which relief can be granted.” Id.

Practice Book § 152 provides: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim, or crossclaim . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleadings or part thereof.” (Emphasis added.) In the present case, the plaintiff never filed a motion to strike the defendant’s negligence counterclaim for failure to state a claim. Rather, the court dismissed the defendant’s counterclaim on its own motion. There was no statutory or other legal authority for the trial court’s dismissal, however. Therefore, we find that it was improper for the court to dismiss the defendant’s counterclaim in the absence of a motion to strike by the opposing party.

The judgment is reversed as to the dismissal of the defendant’s counterclaim only, and the case is remanded for proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-190a provides in pertinent part: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death . . . in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate ... of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.”

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert ... to all other parties within 60 days from the date the case is claimed to a trial list. . . . If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify except in the discretion of the court for good cause shown.” A defendant is in the position of plaintiff with respect to a counterclaim. See Practice Book § 168.

       If the motion to strike is granted, the plaintiff may amend its pleadings by filing a certificate in a timely fashion pursuant to Practice Book §§ 157 and 175. LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990).

       Clearly, the dismissal of the defendant’s counterclaim was not part of the sanctions imposed under Practice Book § 220 (D) for failure to disclose the identity of expert witnesses because the counterclaim was dismissed more than six months after the court imposed sanctions.


author: Heiman, J.

text:
    Bank of Boston Connecticut v. Edward E. Ciarleglio II
    (9768)
    Dupont, C. J., Landau and Heiman, Js.
    Argued December 5, 1991
    decision released February 4, 1992

      Lawrence V. Parnoff, with whom, on the brief, was Kathryn L. Brawn,, for the appellant (defendant).

      Lewis S. Lerman, with whom was Suzanne G. Martin-Esposito, for the appellee (plaintiff).
   Heiman, J.

The defendant, Edward E. Ciarleglio II, appeals from a judgment rendered on a verdict in favor of the plaintiff, Bank of Boston Connecticut, on both the complaint and his counterclaim. The defendant claims that the trial court improperly (1) restricted his cross-examination of witnesses and presentation of direct and rebuttal evidence, (2) commented on and emphasized certain evidence in its jury charge, and (3) excluded the testimony and reports of treating physicians. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On March 23, 1987, the defendant signed a promissory note obligating him to pay the plaintiff the principal sum of $14,000. The note further provided that if the principal sum was not paid by the note’s due date, May 22,1987, the defendant would pay the plaintiff interest of 9.5 percent on the unpaid principal amount, and attorney’s fees. The defendant defaulted on the note by failing to pay the principal amount on or before the due date. On September 18, 1987, after several unsuccessful attempts to collect the amount owed to it, the plaintiff made a formal demand for full payment of the principal, together with interest accruing after the note’s due date. The plaintiff commenced this action by way of a complaint dated November 30, 1987. On December 2, 1987, the plaintiff obtained a prejudgment attachment of real estate owned by the defendant.

In an amended complaint, the plaintiff alleged that the defendant defaulted on the note and owed the plaintiff $14,000 plus interest and attorney’s fees in accordance with the terms of the note. The defendant filed an answer denying that he owed the plaintiff the principal amount of the note, interest or costs, and a special defense alleging that he tendered payment, which the plaintiff refused to accept. The defendant also filed a counterclaim alleging that the plaintiff’s demand for payment and subsequent refusal to accept payment when tendered constituted a breach of contract, negligence and a violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; and that by attaching the defendant’s real estate the plaintiff slandered the defendant’s title to the real estate. The plaintiff filed an answer to the counterclaim denying the allegations of improper collection practices and special defenses alleging that the statute of limitations had run as to the counterclaim and that the attachment of the defendant’s real estate was neither false nor malicious.

After a jury trial, the jury returned verdicts in favor of the plaintiff on both the complaint and the counterclaim and awarded the plaintiff $14,000 plus interest. The defendant filed a timely motion to set aside the verdicts and for a new trial, which the trial court denied. This appeal followed.

I

The defendant first claims that the trial court improperly restricted his cross-examination of witnesses and his presentation of direct and rebuttal evidence.

We first address whether we will review this claim. In his brief, the defendant argues that the trial court improperly restricted his examination and cross-examination of witnesses and presentation of evidence in a number of instances. These claims have not been presented properly. The defendant has failed to state the precise question or offer of exhibit, the objection or ground on which it was based, the ruling and any exception. See Practice Book § 4065 (d) (3). Rather, he cryptically maintains in his brief that “the court rebuffed every attempt by the defendant to offer evidence to show that the plaintiffs witnesses were not credible . . . . [The trial court] would not allow the defendant to present evidence concerning [the signing of a settlement agreement and] the court consistently prevented corroborative evidence of any of the allegations of the defendant’s counterclaim.” Because the defendant has failed to provide us with an adequate basis on which to consider the nature or merits of his claims, we decline to review them. See State v. Vass, 191 Conn. 604, 621, 469 A.2d 767 (1983). Further, because all of the claims involve allegations that the trial court abused its broad discretion to determine the relevancy and materiality of evidence offered at trial, and the defendant has faded to demonstrate that these evidentiary rulings constitute plain error; Practice Book § 4185; or that enforcement of our rule will cause injustice; Practice Book § 4187; we decline to consider these claims. State v. Vass, supra.

II

The defendant next claims that the trial court improperly commented on and emphasized certain evidence in its jury charge. He claims that the trial court, in marshalling the evidence for the jury, inaccurately characterized the evidence introduced at trial, removing issues of fact from the jury’s consideration. We disagree.

The trial court has both the right and the duty to comment on the evidence. State v. Pollitt, 205 Conn. 132, 155-56, 531 A.2d 125 (1987). While the court’s comments must be fair so as not to mislead the jury, “[t]he nature and extent of a court’s comments depend largely on the facts of a case and the manner in which it was tried.” Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 669, 596 A.2d 14 (1991). When the trial court has performed this function properly, “the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.” (Internal quotation marks omitted.) Id.

Moreover, in deciding whether a jury charge was fair and accurate, we do not examine each of the trial court’s statements in a vacuum. Rather, we assess the court’s comments in the context of the entire charge in order to determine whether they fairly and accurately recount the evidence. State v. LaCasse, 9 Conn. App. 79, 85, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986).

No useful purpose would be served by our reciting in detail each of the trial court’s many statements about which the defendant complains together with the evidence that supports each statement. On the basis of our review of the record, including the charge, we conclude that the court fairly and accurately set forth the evidence presented at trial. Moreover, the trial court repeatedly cautioned the jurors that they were the ultimate arbiters of factual issues, and that they were to rely on their recollection of the evidence, not the court’s recitation of it. See Felsted v. Kimberly Auto Services, Inc., supra.

III

The defendant next claims that the trial court improperly excluded the testimony and reports of treating physicians. We disagree.

The following additional facts are necessary to a proper resolution of this issue. The case was claimed to the trial list on April 10,1989. On August 31,1990, the defendant disclosed the identity of medical experts that he intended to call at trial for the purpose of supporting his allegation, set forth in his counterclaim, that the plaintiffs unfair collection practices had caused him to suffer emotional stress which aggravated a preexisting injury. On October 23, 1990, the plaintiff filed a motion to preclude based on Practice Book § 220 (D) requesting the trial court to preclude the defendant from introducing, inter alia, the testimony of expert witnesses. In support of the motion, the plaintiff claimed that the defendant’s disclosure of expert witnesses as to his counterclaim was (1) late, because disclosure was not made within sixty days from the date the case was claimed to the trial list, and (2) insufficient, because it did not state the subject matter to which the expert was expected to testify, the substance of the facts and opinions to which the expert was expected to testify and a summary of the grounds for each opinion. The trial court granted the motion after a lengthy hearing, prohibiting the defendant from introducing medical expert testimony at trial.

On appeal, the defendant challenges this ruling only insofar as it concerns treating physicians, and argues that the disclosure requirements of Practice Book § 220 (D) do not apply to treating physicians. Our recent decision in Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 602 A.2d 1040 (1992), makes clear that the disclosure requirements of § 220 (D) apply to treating physicians as well as other expert witnesses. As a result, the defendant cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The note was a discounted note. Interest on the principal amount was paid at the time the loan was approved. As a result, only the principal amount remained due on the due date.

       We do not comment on the counterclaim insofar as it seeks damages for stress that allegedly exacerbated a preexisting physical condition. The parties do not raise this issue and our failure to address it does not indicate an opinion as to whether it states a cognizable cause of action or whether such a claim can properly be raised in an action seeking to collect on a note.

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate . . . the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception.”

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”