text:
    DIMITRIOS KOUTSOUKOS, ADMINISTRATOR (ESTATE OF MELISSA A. KOUTSOUKOS) v. TOYOTA MOTOR SALES, U.S.A., INC., ET AL.
    AC 33663
    Bear, Espinosa and Sullivan, Js.

      Argued April 19 —
    officially released August 28, 2012

      Jonathan J. Klein, for the appellant (plaintiff).

      John J. Bogdanski, with whom, on the brief, were Mark J. Claflin and Kevin W. Hadfield, for the appel-lees (defendants).
   Opinion

BEAR, J.

The plaintiff, Dimitidos Koutsoukos, administrator of the estate of Melissa A. Koutsoukos (decedent), appeals from the summary judgment rendered by the trial court in favor of the defendants, Toyota Motor Sales, U.S.A., Inc. (Toyota), and Crabtree Motors, Inc. (Crabtree), in this product liability action stemming from a fatal motor vehicle accident. The plaintiff claims that the court erred (1) by holding that, under the facts presented, an ordinary consumer cannot form his or her own expectations about the safety of a motor vehicle’s front driver’s side airbag, (2) by holding that the plaintiff cannot prove that the defendants’ product was defective without the use of expert testimony and (3) by failing to find a genuine issue of material fact with respect to whether an airbag malfunction may have enhanced the fatal injuries of the decedent. We affirm the judgment of the trial court.

The following undisputed facts and procedural history frame our analysis. In the early morning of April 9, 2006, the decedent, the plaintiffs twenty-four year old daughter, was involved in a fatal single car motor vehicle accident on the exit forty-nine south off ramp of the Merritt Parkway in Trumbull. At the time of the accident, the decedent was driving a 2006 Toyota Scion tC, which was manufactured by Toyota and sold to the decedent by Crabtree. It is undisputed that the Scion’s driver’s side bolster and curtain airbags deployed in the accident. The driver’s side front airbag, however, did not deploy.

On April 9, 2008, the plaintiff, then self-represented, commenced this action. The plaintiffs complaint alleges that the defendants are liable for the decedent’s death pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq. The complaint does not allege that a defect in the vehicle’s airbag caused the accident itself. Rather, the complaint alleges that the defective condition of the vehicle’s driver’s side front airbag contributed to the fatal injuries sustained by the decedent during the accident.

On February 4,2011, the defendants filed a motion for summary judgment arguing, in part, that expert opinion was required to establish that, under the circumstances of this case, the failure of the driver’s side front airbag to deploy constituted a product defect. Additionally, the defendants argued that the plaintiff failed to produce expert opinion addressing whether the failure of the driver’s side front airbag to deploy caused or enhanced the injuries to the decedent.

On April 27, 2011, the court granted the defendants’ motion for summary judgment, articulating its reasoning in a subsequently filed memorandum of decision. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff challenges the summary judgment rendered in favor of the defendants. “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 fight most favorable to the nonmoving party. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Lancia v. State National Ins. Co., 134 Conn. App. 682, 687, 41 A.3d 308, cert. denied, 305 Conn, 904, 44 A.3d 181 (2012).

The plaintiff claims that the court erred “by holding that under the modified consumer expectation test of Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, [694 A.2d 1319] (1997), as applied to the particular facts of this case, an ordinary consumer cannot form his or her own expectations of the safety of a motor vehicle’s front driver’s side airbag. ” Moreover, the plaintiff claims that the court improperly held that he could not prove that the defendants’ product was defective without the use of expert testimony. Because, as framed by the plaintiff, these claims are closely related, we will address them together.

“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.” (Citations omitted; internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).

Nonetheless, where complex products are concerned, “an ordinary consumer may not be able to form expectations of safety.” Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 219. Generally, absent direct evidence of a product defect, “[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. See D. Owen, [‘Manufacturing Defects,’ 53 S.C. L. Rev. 851, 880 and n.183 (2002)] (citing cases in which expert testimony was required); cf. Potter v. Chicago Pneumatic Tool Co., supra, [217-18].” Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 141; see also Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 375, 889 A.2d 829 (2006) (“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]). The present matter presents such a case.

Attached to their motion for summary judgment, the defendants provided affidavits from multiple expert witnesses, including a mechanical engineer specializing in accident reconstruction and an engineer specializing in biomechanical analysis. The accident reconstruction expert’s description of the crash sequence provides: “As the [decedent’s] vehicle proceeded onto the ramp, the vehicle initially departed the roadway to the left; then re-entered the roadway and went into a clockwise yaw (as viewed from above) as it traveled back to the right across the pavement. It crossed the travel lane and the breakdown lane and departed the right side of the roadway after having rotated to an orientation approximately perpendicular to the road. . . .

“As the vehicle left the right side of the roadway, the left side wheels firmly struck and jumped the asphalt curb and the clockwise yaw continued as the vehicle traveled onto the grassy shoulder. The front portion of the left side of the vehicle engaged a rising dirt embankment which accelerated its clockwise yaw and caused the vehicle to roll toward the driver’s side. Now travel-ling in a rearward and a driver’s side leading direction, the rear bumper, fender and upper rear portion of the occupant compartment struck a large boulder on the right-hand side shoulder. This impact redirected the vehicle back out toward the paved roadway and continued its clockwise rotation. Its front end and hood contacted a lamp post as it passed by, rotating to rest in the breakdown lane. . . .

“The decedent was unbelted, and was ejected from the vehicle. Her body was found on the grassy median strip on the left side of the ramp, on the opposite side of the road from where the vehicle struck the rock.”

The accident reconstruction expert concluded that “given the direction and magnitude of this impact, it is neither surprising nor unexpected that the driver’s side front airbag did not deploy in this accident sequence. The vehicle struck [a] boulder with the rear driver’s side leading, and the angle and direction of this impact would not deploy the driver’s front airbag which is designed and intended to deploy only in a frontal impact of significant magnitude. Given the force and angle of this impact, the airbag system functioned appropriately by deploying the side airbags and curtain shield airbags on the driver’s side.” The plaintiff did not provide any expert opinion in response to the averments of the defendants’ experts to establish any genuine issue of material fact.

In support of his argument that expert opinion was not necessary in this case, the plaintiff cites to trial court cases where product liability claims involving allegedly defective airbags have survived summary judgment in the absence of expert opinion. We agree with the plaintiff that there are cases in which a product defect was deemed to be so obvious that expert opinion was not found to be required. See, e.g., DeBartolo v. Daimler Chrysler Corp., Superior Court, judicial district of New Haven, Docket No. CV-03-0482725-S (December 22, 2005) (expert opinion not required where airbag failed to deploy during direct frontal impact when vehicle traveling at thirty to thirty-five miles per hour); Vaccarelli v. Ford Motor Co., Superior Court, judicial district of Waterbury, Docket No. CV-99-0153308 (July 6, 2001) (expert opinion not required where airbag deployed during normal operation of vehicle, in absence of collision). We disagree, however, that the present matter presents a case in which the evidence, direct or circumstantial, of a defect is sufficient to obviate the need for expert opinion. This is not an accident “so bizarre that the average juror, upon hearing the particulars, might reasonably think: Whatever the user may have expected from that contraption, it certainly wasn’t that. ” (Internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 222; cf. Davis v. Margolis, 215 Conn. 408, 416 n.6, 576 A.2d 489 (1990) (expert opinion not required in legal malpractice case where want of care so gross even a layperson can make that determination).

According to the evidence presented by the defendants, the motor vehicle accident that underlies the plaintiff’s claim involved high initial speeds, significant vehicle rotation, multiple impacts, substantial vehicle deceleration and attendant physical forces. On the basis of our review of the record, we agree with the court’s determination that whether or when the driver’s side front airbag — one of multiple inflatable restraints installed in the decedent’s vehicle — should have deployed under the circumstances of the accident is outside the ken of the average consumer’s experience. Therefore, we find no error in the court’s determination that the plaintiff was required to present expert opinion to establish a genuine issue of material fact concerning his claims about the driver’s side front airbag in order to defeat the defendants’ motion for summary judgment.

The defendants’ experts opined that the airbag system in the decedent’s vehicle functioned appropriately, deploying side bolster and curtain airbags, and that, based on the forces and impact angles of the accident, the driver’s side front airbag would not be expected to deploy. The plaintiff failed to present expert opinion rebutting these conclusions. Although the plaintiff disclosed a medical expert, H. Wayne Carver II, the state’s chief medical examiner, and offered his deposition testimony during the summary judgment hearing, we determine that the averments of the plaintiffs medical expert are insufficient to create an issue of material fact as to the presence of a defect or an unreasonably dangerous condition with respect to the driver’s side front airbag. Specifically, we note that the deposition testimony of the plaintiffs expert primarily concerns issues related to cause of death and whether the nondeployment of the driver’s side front airbag caused or exacerbated the fatal injuries suffered by the plaintiffs decedent. That testimony, however, does not address the issues of whether or when the airbag reasonably would be expected to deploy during the course of the accident.

Likewise, a police accident report attached to the plaintiffs objection to the motion for summary judgment indicating that the decedent’s vehicle sustained front end damage is insufficient, in and of itself, to create a genuine issue of material fact as to the allegedly defective condition of the vehicle’s driver’s side front airbag. As noted, the issue of airbag deployment, under the circumstances presented, falls outside of the common experience of a juror. An accident report merely indicating front end damage to a vehicle does not establish reliably the forces and angles of impact that contributed to such damage, when and if the damage was sustained during the accident sequence, and whether those forces would be expected to result in the deployment of the driver’s side front airbag.

The plaintiff has failed to offer any expert opinion demonstrating that the subject airbag was defective, in design or operation, or demonstrating the absence of other identifiable causes of the alleged airbag defect in response to the defendants’ averments that the airbag responded properly by not deploying on the basis of the force and angle of impact. Accordingly, summary judgment was appropriate in this case. See, e.g., Balducci v. Hyundai Motor America, Inc., United States District Court, Docket No. 3:08CV00356 (AVC) (D. Conn. March 11, 2010) (summary judgment granted where defendants presented expert opinion that airbag’s failure to deploy was not malfunction and plaintiff failed to rebut with own expert opinion), aff'd, 406 Fed. Appx. 517 (2d Cir. 2011); Lisella v. Ford Motor Co., United States District Court, Docket No. 3:97CV2001 (DJS) (D. Conn. October 26, 1999) (summary judgment granted where defendant provided expert opinion regarding physics and occupant kinematics of accident and plaintiff failed to rebut with own expert testimony addressing defective design or operation of airbag).

Because we conclude that the court properly determined that the plaintiff failed to provide countervailing evidence, in the form of expert opinion, that was sufficient to establish a genuine issue of material fact regarding the presence of a defective or unreasonably dangerous condition, we need not address the plaintiffs additional claim concerning alleged enhancement of the decedent’s injuries. The court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       On August 27, 2008, counsel filed an in lieu of appearance on behalf of the plaintiff.

       Specifically, the complaint alleges that the decedent’s vehicle was “in a defective and unreasonably dangerous condition in that it was subject to . having its front airbags not deploy in a collision and could not be used without unreasonable risk of injury to [the decedent].” The complaint also alleges that the defendants failed to warn of the alleged defect, failed to warn adequately of the dangerous propensities of the vehicle’s airbags, misrepresented that the vehicle was safe for use and failed to disclose the dangerous propensities of the airbags. In addition, the complaint alleges that the airbags were designed defectively and that the defendants breached implied and express warranties with regard to the vehicle.

       Yaw is defined as “an angular displacement from a straight line or course.” Webster’s Third New International Dictionary.

       The plaintiff stated at oral argument before this court that he does not “quarrel with” the accident reconstruction expert’s account of the crash and, in fact, extensively quotes that expert’s affidavit in his recitation of facts in his appellate brief.

       The plaintiffs disclosure form provided that his expert witnesses were expected to testify regarding “[p]ast, present and future treatment of the plaintiff; causation; medical condition of the plaintiff; results of diagnostic tests; prognosis; qualifications.” There was no disclosure of any expert witness to testify about the presence of a defect or an unreasonably dangerous condition with respect to the driver’s side front airbag.


source: Caselaw Access Project

author: BEAR, J. LAVINE, J.,

license: Public Domain

text:
    DONNA WIKANDER v. ASBURY AUTOMOTIVE GROUP/DAVID MCDAVID ACURA ET AL.
    (AC 33891)
    Lavine, Bear and Pellegrino, Js.
    Argued May 18 —
    officially released August 28, 2012

      Timothy G. Zych, with whom, on the brief, was Allison M. Ruiz, for the appellants (defendants).

      Matthias J. DeAngelo, with whom, on the brief, was Thomas Gavin Cotter, for the appellee (plaintiff).
   Opinion

BEAR, J.

The question in this case is whether, pursuant to the proviso set forth in General Statutes § 31-294c (a), the one year or the two year filing period applies to a dependent’s claim for workers’ compensation benefits when an employee suffers a work-related accident and dies on the same day. The defendants, Asbury Automotive Group/David McDavid Acura (Asbury) and its insurer, Travelers Indemnity Company, appeal from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the fourth district (commissioner) awarding benefits to the plaintiff, Donna Wikander, the widow of Thomas Wikander. On appeal, the defendants claim that the board erred in affirming the decision of the commissioner, who had found that the plaintiffs claim for benefits, pursuant to § 31-294c (a), was timely despite having been filed more than one year from the fatal injury of Thomas Wikander. We affirm the decision of the board.

The following uncontested facts, as found by the commissioner, are relevant to this appeal. Thomas Wikander was employed by Asbury on September 25, 2007, when he suffered a fatal heart attack while on a business trip in Texas. The medical examiner in Texas, William B. Rohr, determined that Thomas Wikander’s conditions of employment had created considerable stress for him and that work-related stress had been a “major contributing factor to [his] sudden death . . . .” The plaintiff filed a claim for workers’ compensation benefits in Texas in 2008, but she did not pursue that claim to judgment because she was told by an attorney that Texas did not allow workers’ compensation benefits for heart attacks. On April 14, 2010, Edward J. Kosinski, a cardiologist with an office in Bridgeport, concurred with the determination of Rohr that there was a causal link between the work-related stress suffered by Thomas Wikander and his fatal heart attack.

On September 15, 2009, the plaintiff filed a form 30D seeking to collect benefits in Connecticut. The defendants, however, did not file a form 43 to contest liability on the claim. Accordingly, on November 13, 2009, the plaintiff filed a motion to preclude the defendants from contesting liability. The defendants responded by arguing that the denial of liability that they had filed in the plaintiffs Texas case was sufficient to comply with § 31-294c. They also argued that the commissioner lacked subject matter jurisdiction over the plaintiffs claim for benefits because it was untimely. The commissioner did not agree with either of the defendants’ arguments. Accordingly, the commissioner precluded the defendants from contesting liability, and he found that the plaintiffs claim was timely, having been filed within two years of Thomas Wikander’s death. The defendants appealed to the board from the commissioner’s decision. Following the board’s affirmance of that decision, the defendants filed the present appeal.

On appeal, the defendants claim that the commissioner was without subject matter jurisdiction because the plaintiffs claim for benefits was untimely. They argue that, if an employee dies on the day of the work-related accident, as in the present case, death does not result “within two years from the date of the accident,” but, instead, death results on the date of the accident, and the proviso language of § 31-294c (a) does not apply. (Emphasis added.) We conclude that acceptance of the defendant’s argument would create an untenable result in cases of work-related accidental injury, when the injured employee dies on the day of the accident, that was not intended by our legislature. We further conclude that the board’s affirmance of the commissioner’s decision was proper.

“Under our well established standard of review, [w]e have recognized that [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that . . . deference ... to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Harpas v. Laidlaw Transit, Inc., 286 Conn. 102, 108-109, 942 A.2d 396 (2008).

Section 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury, provided, if death has resulted within two years from the date of the accident ... a dependent or dependents . . . may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. . . .”

“Under General Statutes § 31-306 (a), a dependent of a deceased employee is entitled to survivor’s benefits when that employee has died ‘from an accident arising out of and in the course of employment . . . .’ Eligibility for those benefits, however, is conditioned upon compliance with ... § 31-294c (a) . . . .” Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 533, 829 A.2d 818 (2003). “Although we repeatedly have observed that our workers’ compensation legislation is remedial in nature . . . and . . . should be broadly construed to accomplish its humanitarian purpose . . . the written notice required under § 31-294c (a) nevertheless must reasonably inform the employer that the employee [or dependent] is claiming or proposes to claim compensation under the [Workers’ Compensation] Act. ... It is well established, moreover, that a [timely] notice of claim or the satisfaction of one of the . . . exceptions [contained in § 31-294c (c)] is a prerequisite that conditions whether the commissioner] has subject matter jurisdiction under the [Workers’ Compensation] [A]ct.” (Citations omitted; internal quotation marks omitted.) Id., 534.

In this case, it is not disputed that Thomas Wikander suffered a fatal heart attack and died on September 25, 2007, that the plaintiff filed a notice of claim on September 15, 2009, nearly two years after Thomas Wikander’s death, but clearly within the two year filing period under § 31-294c (a), if applicable, and that the defendant did not file a form 43 to contest liability. The question with which we are presented is whether the legislature intended to limit a dependent filing a notice of claim to one year in the case where an accidental injury and death occur on the same day, while allowing at least two years to file such notice if death occurs at least one day after the date of the work-related accidental injury. The defendants argue that under Connecticut law, we generally do not count the first day of an event when calculating time. For example, when calculating “two years from the date of the accident,” one would not begin to calculate the running of the two year period until the day after the work-related accident, because, unless the accident and death occurred at 12:01 a.m., the day of the accident is a partial day, and not a full day. Therefore, the defendants argue, Thomas Wikander did not die “within” two years “from” the date of the accident; he died on the day of the accident, and the proviso language set forth in § 31-294c (a) does not apply to this case. They argue that the commissioner should have resorted to the filing period set forth earlier in the statute, which is one year. See General Statutes § 31-294c (a) (“[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury” [emphasis added]). The plaintiff argues that such a construction lacks common sense and would lead to a bizarre result, namely, if an employee is injured at work and dies at 11:59 p.m. on the day of the injury, his dependent would have one year within which to file a claim for benefits because the proviso portion of § 31-294c (a) would not apply, but, if the employee were able to survive until 12:01 a.m. the next day or some time thereafter, his dependent would have two years to file a claim because the proviso portion of § 31-294c (a) would apply. See General Statutes § 31-294c (a) (“provided, if death has resulted within two years from the date of the accident . . . the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later”). We agree that the defendants’ construction would lead to an untenable result, and we conclude that the legislature did not intend a different and shorter filing period for the dependents of those employees who suffer a work-related accidental injury and die as a result thereof on the date of the accident. See generally Chambers v. Electric Boat Corp., 283 Conn. 840, 844, 930 A.2d 653 (2007) (workers’ compensation legislation is remedial in nature, has humanitarian purpose and should be construed broadly); Fredette v. Connecticut Air National Guard, 283 Conn. 813, 821-22, 930 A.2d 666 (2007) (plain and unambiguous text of statute should not be read in manner that leads to absurd or unworkable results; we presume legislature intended just and rational results when enacting legislation).

The defendants are correct in arguing that, for purposes of determining when a filing period runs, we generally do not count the first day, the day of the act. See Alliance Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn. 204, 212, 820 A.2d 224 (2003) (“[i]n determining the last day for filing papers, the last day is included and the first day is not” [internal quotation marks omitted]); Krajniak v. Wilson, 157 Conn. 126, 130, 249 A.2d 249 (1968) (“our usual rule [requires] that the day of the date, or the day of the act from which a future time is to be ascertained, is to be excluded from the calculation” [internal quotation marks omitted]). In this case, however, we are not attempting to ascertain the last day for filing a claim, because the defendants have not contested that if the two year period applies, the claim is timely; instead, we are determining whether the plaintiffs claim was filed “within two years from the date of the accident” as set forth in § 31-294c (a). “[T]he purpose of a date of injury in a notice of claim is distinct from the purpose of a date of injury with regard to a statute of limitations. . . . [T]he purpose of requiring a date of injury in a notice of claim is to allow the employer to make a timely investigation of the claim .... In contrast, the purpose of a date of injury with regard to a statute of limitations is to determine when that [limitation] period begins to run.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 616, 748 A.2d 278 (2000).

We conclude that the work-related injury and death of Thomas Wikander occurred “within two years from the date of the accident” because that phrase implicitly encompasses those employees who died on the date of the accident. “It is a fundamental principle of statutory construction that courts must interpret statutes using common sense and assume that the legislature intended a reasonable and rational result.” Longley v. State Employees Retirement Commission, 284 Conn. 149, 171-72, 931 A.2d 890 (2007). When we can ascertain “no logical reason why the legislature would embrace . . . a policy [that appears to us to be irrational], we will not lightly presume that it intended to do so. See, e.g., Connelly v. Commissioner of Correction, 258 Conn. 394, 407, 780 A.2d 903 (2001) (‘[t]he unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable’).” Longley v. State Employees Retirement Commission, supra, 173-74.

“Within,” as defined in the Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003), means in relevant part: “[1] before the end of . . . [2] not beyond the . . . limitations of . . . [and] [3] in or into the range of . . . .” See also First Federal Savings & Loan Assn. of Rochester v. Pellechia, 37 Conn. App. 423, 426, 656 A.2d 688 (“[t]he meaning of [the word] within is not longer in time than [and] . . . not later than” [citation omitted]), cert. granted on other grounds, 234 Conn. 905, 659 A.2d 1206 (1995) (appeal withdrawn February 5, 1996). It is beyond dispute that the plaintiff filed her notice of claim before the end of, not beyond the limitations period of, not longer in time than and prior to two years from the date of Thomas Wikander’s accident, the fatal heart attack. We agree with the board that the plain meaning of § 31-294c (a) makes the plaintiffs claim, filed within two years after his death, jurisdiction-ally valid.

Insofar as the defendants’ argument also might be construed as acknowledging that the proviso language applies, but arguing, nonetheless, that the “or one year from the date of death” language controls in this case, we also reject such a contention. The proviso language of § 31-294c (a) provides in relevant part that “provided, if death has resulted within two years from the date of the accident . . . the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. . . .” We already have determined that an employee who suffers a work-related injury and dies as a result thereof on the same day, dies “within two years from the date of the accident . . . .” His or her legal representative then “may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. . . .” We conclude that, in order to agree with the defendant’s contention, we would have to ignore the plain language of the statute that gives the dependent the later of the two applicable periods to file a claim for benefits.

After considering the plain language of the statute, we conclude that the proviso language of § 31-294c (a) means that the dependent, after the death of the employee who had to have died within two years of the accident or the first manifestation of a symptom of an occupational disease for the proviso to be applicable, has the later of either the two year period after the employee’s death or one year from the date of the employee’s death to file a claim for benefits. This conclusion follows from and is consistent with our Supreme Court’s statutory analysis set forth in Fredette v. Connecticut Air National Guard, supra, 283 Conn. 813. In Fredette, our Supreme Court considered whether a dependent could utilize the three year occupational disease claim period set forth in the initial portion of § 31-294c (a) or whether the dependent was precluded from filing a claim because the employee had not died within two years of the first manifestation of his symptoms, and, therefore, the proviso language did not apply. See id., 815-16, 836-37. The court concluded that, if an employee had not yet made a claim for occupational disease benefits, the dependent’s claim would be timely if it satisfied the time parameters of either clause of the statute, depending on whether the employee had died within two years of the accident or first manifestation of symptoms. See id., 837-38.

As explained by our Supreme Court in Fredette, “[d]uring the 1920s, the legislature made two significant changes to the predecessor to § 31-294c (a). First, the legislature established different triggering events for the commencement of the limitations period based on whether the compensable injury resulted from an accident or an occupational disease. . . . Second, the legislature added the first version of the proviso . . . which expanded the limitations period from, one to two years for claims of dependents in cases wherein the employee had not filed a claim.” (Citations omitted; emphasis added.) Id., 827. “At the close of that decade the amended statute of limitations provided in relevant part: ‘No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation shall be given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death shall have resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents may make claim for compensation within said two-year period ....’” (Emphasis in original.) Id., 827-28.

The court further explained that “the legislature introduced the proviso, not as a condition precedent for the commencement of dependents’ claims, but rather to articulate a modified — at the time, extended — limitations period for the commencement of such claims. The proviso served as an exception to the underlying one year limitations period for cases in which the employee had, during his lifetime, failed to satisfy that one year limitations period, but still had died within the two year period for which dependents’ claims were compensable under the predecessor to § 31-306. ... In other words, for dependents with claims under the predecessor to § 31-306, for ‘death resulting from accident or an occupational disease within two years from the date of the accident or first manifestation of a symptom of the occupational disease’ . . . the proviso expanded the limitations period of the predecessor to § 31-294c (a) from one year to ‘said two-year period ....’” (Citations omitted.) Id., 828-29.

After some additional changes to the predecessor of § 31-294c (a), which did not include changes to the proviso language; see id., 829-30; the legislature, in 1959, “modified the proviso’s two year limitations period for dependents’ claims to prescribe that the later of two periods would apply: (1) two years from the accident or first manifestation of the employee’s occupational disease; or (2) one year from the employee’s date of death. . . . Prior to 1959, if an employee, who had not filed a claim during his lifetime and were to die exactly one day short of two years after his diagnosis, his dependents would have had only one day in which to file their claims. The 1959 amendment, however, provided the dependents in such a case one year from the date of death to file a claim.

“Two years later, the legislature moved into the proviso of § 31-294c (a) that part of the statute that previously had authorized dependents or legal representatives of employees to file claims in cases of fatal injuries. . . . The amended statute provided in relevant part: ‘[I]f death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later.’ ” (Citations omitted.) Id., 830-31.

As explained in Fredette, the legislature added the additional “one year from the date of death” language to correct the problem that existed when an employee died nearly two years after the date of the accidental injury, or from the first manifestation of a symptom of the occupational disease, which gave the dependent only days within which to file a timely claim to be within the two year statute of limitations. The additional one year period meant that, when an employee died within two years from the date of the accident, the dependent had at least one year to file a claim following the employee’s death. “[T]he legislature originally crafted the proviso of § 31-294c (a) as an expansion of the underlying one year limitations period for cases in which the employee had, during his lifetime, failed to satisfy the underlying statute of limitations but still had died relatively ‘swiftly’ . . . namely, within two years of the injury.” (Citation omitted; emphasis added.) Id., 834.

We conclude that the plain language of § 31-294c (a) dictates that, if an employee is claiming an injury as a result of a work-related accident, the employee has one year to file a claim for benefits. If an employee is claiming a work-related.occupational disease, the employee has three years from the first manifestation of that disease to file a claim for benefits. If, however, the employee dies within two years of the accident or the first manifestation of symptoms of an occupational disease and the employee’s dependent is filing a claim for benefits, the proviso language of § 31-294c (a) applies, and the dependent has two years to file a claim for benefits or has one year from the date of the employee’s death, whichever is longer. Pursuant to our Supreme Court’s holding in Fredette, however, if the employee dies more than two years after the first manifestation of symptoms related to an occupational disease without ever having filed a claim for benefits, the employee’s dependent has the time remaining of the three years after the first manifestation of symptoms to file a claim, and the proviso language does not apply in such cases. See id., 815-16, 836-37.

In the present case, the defendants failed to file a form 43 contesting their liability for Thomas Wikander’s fatal heart attack. Accordingly, it is presumed that his heart attack was a work-related accidental injury, which caused his death on the same day as the accident. The plaintiff, his dependent, therefore, pursuant to the proviso language of § 31-294c (a), had the two year period to file a claim for benefits; see id., 834 (“legislature originally crafted the proviso of § 31-294c (a) as an expansion of the underlying one year limitations period”); and she properly did so.

The decision of the workers’ compensation review board is affirmed.

In this opinion PELLEGRINO, J., concurred.

LAVINE, J.,

concurring. I concur in the majority’s result but write separately to echo the concerns about the lack of clarity in General Statutes § 31-294c (a) expressed by our Supreme Court in Fredette v. Connecticut Air National Guard, 283 Conn. 813, 839, 930 A.2d 666 (2007), to wit: “We have attempted in this case to answer the specific question before us and, in the process, to make sense of a complex statutory scheme that presents gaps and internal inconsistencies in its treatment of the time limits for death claims resulting from occupational diseases. We, therefore, urge the legislature to address these gaps and inconsistencies, because this is an area that, to the extent feasible, should be addressed by the specific statutory language rather than by judicial interpretation.” Although this case concerns an accident that allegedly caused the worker’s death on the same day in which no notice was filed by any party within one year of the accident, the proviso portion of § 31-294c (a) is problematic as it melds the time in which a claim for dependent benefits must be filed for both accidental and occupational disease cases. I respectfully suggest that the legislature may wish to consider clarifying the statute by stating, in separate sentences or provisions, the limitation period or periods within which to file claims for an injury that causes a worker to die on the date of the accident, deaths that occur as a result of the accident but not on the date of the accident and deaths arising from occupational diseases.

The language of the statute that is particularly troubling is “a written notice of claim for compensation is given within one year from the date of the accident . . . (Emphasis added.) General Statutes § 31-294c (a). It is not clear what, if any, is the difference between “one year from” and “one year of’ the accident.

To apply the proviso portion of § 31-294c (a) under the facts of this case, that is where death occurs on the same day as the accident, vitiates one of the salutary purposes of the workers’ compensation scheme. “It is clearly intended by the [Workers’ Compensation] Act in general, that a speedy determination of the rights of the contending parties should be had by a procedure simple and easily understood.

“It is intended that the employee should know what compensation he or his dependents would receive in the event of injury, and that payment should be made speedily by a procedure at once simple and inexpensive. It is intended that the employer should know his liability in this regard, and so might include it among the items charged to operation.” (Internal quotation marks omitted.) Tolli v. Connecticut Quarries Co., 101 Conn. 109, 116, 124 A. 813 (1924).

For the foregoing reasons, I respectfully concur in the majority opinion.

       In its memorandum of decision, the board, after analyzing the defendants’ claims on their merits, held that it found no error in the commissioner’s decision and, therefore, affirmed the finding and award of the commissioner. In addition to affirming the decision of the commissioner, however, the board also stated that the defendants’ appeal was dismissed. We conclude that this language was used in error. As we stated in Krol v. A.V. Tuchy, Inc., 135 Conn. App. 854, 855 n.1, 44 A.3d 185 (2012), “[t]he fact is that the board’s substantive determination did not result in the dismissal of the appeal; the board ruled on its merits and affirmed the [decision] of the commissioner . . . .”

       We note that although the defendants failed to file a form 43 and, thus, were precluded from contesting their liability to the plaintiff, our Supreme Court has determined that “the conclusive presumption cannot bar defenses related to the commissioners’ subject matter jurisdiction under the Workers’ Compensation Act. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988) (employer not barred from contesting employer-employee relationship); Del Toro v. Stamford, 270 Conn. 532,547,853 A.2d 95 (2004) (employer not barred from contesting whether injury for which compensation is sought is covered); see also Infante v. Mansfield Construction Co., 47 Conn. App. 530, 534-35, 706 A.2d 984 (1998) (employer not barred from contesting timely initiation of claim).” Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 117 n.11, 942 A.2d 396 (2008).

       Specifically, § 31-306 (a) provides in relevant part: “Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease . . .

       The legislature further amended the statute of limitations regarding occupational disease; however, “[t]he operation of the proviso with regard to accident claims was not affected by the 1980 amendment, which only increased the underlying limitations period for claims involving occupational disease.” Fredette v. Connecticut Air National Guard, supra, 283 Conn. 834 n.17.

       Explaining the proviso language of § 31-294e (a) and the court’s analysis in Fredette, the workers’ compensation law section of the Connecticut Practice Series explains: “The Court [in Fredette], painstakingly examining the history of the provision, held that the provision did not shorten the time for filing a survivor’s claim, but rather was intended to give survivors additional time for filing claims beyond the one-year period from the date of the injury or first manifestation; this one-yearperiod also applied to occupational diseases until 1980, when the statute was amended to allow three years from the first manifestation, rather than one year, for the filing of claims in occupational disease cases. After 1980, the proviso is essentially inapplicable to occupational disease claims, since the three-year period from the date of the first manifestation will always be longer than or coincident with the time provided by the proviso. The proviso continues, however, to provide an extended period for survivors’ claims for deaths from accidental injuries.” R. Carter et al., 19 Connecticut Practice Series: Workers’ Compensation (2011) § 18:7.


author: ROBINSON, J.

text:
    JP MORGAN CHASE BANK, N.A. v. WINTHROP PROPERTIES, LLC, ET AL.
    (AC 33874)
    Gruendel, Robinson and Sheldon, Js.

      Argued May 29 —
    officially released August 28, 2012

      HughD. Hughes, with whom, on the brief, were William F. Gallagher and David Pinciaro, for the appellants (defendant Zeev Zuckerman et al.).

      Walter M. Spader, Jr., for the appellee (substitute plaintiff).
   Opinion

ROBINSON, J.

In this mortgage foreclosure action, the defendants Zeev Zuckerman and Leon Szusterman, personal guarantors of the mortgage debt (guarantors), appeal from a deficiency judgment rendered against them by the trial court in favor of the plaintiff 1633 Chapel, LLC, and from the court’s decision granting a motion to strike their notice of defense as legally insufficient. The guarantors claim on appeal that the court erred in striking their notice of defense and awarding a deficiency judgment because General Statutes § 49-1 barred the plaintiff from taking any further action to collect upon the obligation of the guarantors after the plaintiff failed to file a motion for a deficiency judgment within the thirty day time limit provided for in General Statutes § 49-14. We agree and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts and procedural history. In 2005, the defendant borrowed $1,012,500 from Washington Mutual Bank. In return for the loan, the defendant executed a promissory note and a mortgage on property in New Haven known as 1533 Chapel Street, also known as 1531 Chapel Street. As a further condition to obtaining the loan, the guarantors were required to execute a personal guarantee in which they assumed joint and several liability for repayment of the note. The defendant later defaulted on the note by failing to make the required monthly mortgage payments. JP Morgan Chase Bank, N.A., as the successor in interest to Washington Mutual Bank, filed the present action.

Count one of the operative complaint sought to foreclose on the mortgage securing the note. Count two sought to enforce the guarantee. The ad damnum clause indicated that the plaintiff sought, inter alia, a judgment of strict foreclosure and a “deficiency judgment against the makers of or obligors on the note described herein.” Shortly after commencing the action, the plaintiff filed a motion for a judgment of strict foreclosure.

The plaintiff filed a motion for summary judgment as to liability only on February 17, 2010. The plaintiff directed the motion to both counts of the complaint, arguing that there were no genuine issues of material fact concerning liability and that it was entitled to judgment as a matter of law. On May 20, 2010, the court issued an order granting summary judgment against the defendant and the guarantors as to liability only. Subsequently, on June 28, 2010, the court granted the plaintiffs motion for a judgment of strict foreclosure. In rendering the judgment of strict foreclosure, the court found that the fair market value of the subject property was $325,000 and that the debt was $1,159,014.55, plus attorney’s fees. The court set the defendant’s law day for August 23, 2010. The defendant did not appeal the foreclosure judgment, nor did it attempt to redeem the property prior to the passing of its law day. Accordingly, on August 24, 2010, in the absence of redemption by the defendant, title to the subject property vested in the plaintiff.

On October 14, 2010, more than thirty days after the time in which to redeem the subject property had expired, the plaintiff filed a motion for a deficiency judgment. Recognizing that the motion was not timely filed, the plaintiff never sought adjudication of the motion. Instead, on January 14, 2011, in reliance on the fact that summary judgment as to liability had been granted against the guarantors on count two of the complaint, the plaintiff filed a request for a hearing in damages on that count. On March 4, 2011, the guarantors filed an objection to the request for a hearing in damages. They argued that, because the plaintiff had not filed a motion for a deficiency judgment within thirty days of the running of the law days as required by § 49-14, the plaintiff was barred by § 49-1 from taking any further action to collect money damages from the guarantors. The plaintiff filed a reply to the objection. The guarantors also filed a notice of defense in which they raised the same argument made in their objection to the request for a hearing in damages. On March 22, 2011, the plaintiff filed a motion to strike the guarantors’ notice of defense, arguing that “ [t]he purported defense is legally insufficient for it fails to defeat the plaintiffs cause of action on count two of the complaint, as a guaranty is a separate and distinct contractual instrument upon which the plaintiff can proceed to judgment.” The guarantors filed an opposition to the motion to strike.

The court granted the motion to strike on May 12, 2011, stating: “The court adopts the analysis of Connecticut Bank & Trust Co. v. Boston Post Ltd. Partnership, [Superior Court, judicial district of New London, Docket No. 515294 (December 12, 1990) (3 Conn. L. Rptr. 56)] in finding count two, the ‘guaranty’ count, a separate, independent and distinct cause of action from that stated in count one. The failure of the plaintiff to timely seek a deficiency judgment on count one is of no moment to the cause of action stated in count two. The motion to strike the defense raised by a failure to secure a deficiency judgment on count one is therefore granted.” On August 24, 2011, the court, Hon. Howard F. Zoarski, judge trial referee, following a hearing in damages, rendered a deficiency judgment in the amount of $1,295,888.45 against the guarantors and in favor of the plaintiff. This appeal followed.

The guarantors first claim that the court erred by granting the plaintiffs motion to strike their notice of defense on the ground that it failed to allege a legally sufficient defense. According to the guarantors, the language of §§ 49-1 and 49-14 supports their argument, raised in the notice of defense, that a foreclosure plaintiff who fails to file a timely motion for a deficiency judgment cannot recover additional damages from a guarantor based on the terms of a guarantee, the purpose of which was to secure the debt owed under the mortgage note. We agree.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. Amotion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 128-29, 952 A.2d 56 (2008). Accordingly, we must consider the legal sufficiency of the defense raised by the guarantors in their notice of defense. If we determine that the defense was legally sufficient, we must reverse the court’s decision to grant the motion to strike.

To the extent that we must engage in statutory interpretation in exercising our plenary review, we are mindful that “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Lopa v. Brinker International, Inc., 296 Conn. 426, 430, 994 A.2d 1265 (2010).

“The law governing strict foreclosure lies at the crossroads between the equitable remedies provided by the judiciary and the statutory remedies provided by the legislature. ... In exercising its equitable discretion . . . the court must comply with mandatory statutory provisions that limit the remedies available to a foreclosing mortgagee.” (Citations omitted.) New Milford Savings Bank v. Jajer, 244 Conn. 251, 256-57, 708 A.2d 1378 (1998). “Historically, a foreclosure proceeding was an absolute bar to further action on the mortgage debt. In M’Ewen v. Welles, 1 Root [(Conn.)] 202, 203 (1790), the Supreme Court enunciated that [i]f [the mortgagee] choose [s] to take the land and to make it his own absolutely, whereby the mortgagor is totally divested of his equity of redemption, the debt is thereby paid and discharged: And if it eventually proves insufficient to raise the sum due, it is the mortgagee’s own fault, and at his risk. Starting in 1835, a succession of statutes established a mortgagee’s right to a judgment for the deficiency when the value of the property proves inadequate to satisfy the mortgage debt in full.” (Internal quotation marks omitted.) Factor v. Fallbrook, Inc., 25 Conn. App. 159, 161-62, 593 A.2d 520, cert. denied, 220 Conn. 908, 597 A.2d 332 (1991).

Section 49-1 currently provides in relevant part that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . Section 49-14 provides an exception to § 49-1 that is applicable in cases in which the value of the foreclosed property is inadequate to satisfy wholly the mortgage debt. Specifically, it provides that the foreclosing mortgagee may “within thirty days after the time limited for redemption has expired . . . file a motion seeking a deficiency judgment.” General Statutes § 49-14 (a). Our Supreme Court has stated that “strict compliance with [§ 49-14 (a)’s] provisions [is] a condition precedent to the entry of a deficiency judgment. . . . The necessity of a definite rule of general application and, as well, an unvarying adherence to it, is manifest. Departures from it, if permitted, might lead to grave abuse.” (Internal quotation marks omitted.) Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 676, 589, 726 A.2d 502 (1999). Thus, it is well settled in Connecticut that, “[u]nder ... § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, except those enforceable through the use of the deficiency judgment procedure delineated in ... § 49-14.” First Bank v. Simpson, 199 Conn. 368, 370, 507 A.2d 997 (1986). “Such a deficiency judgment, in light of § 49-1, is, therefore, the only available means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole.” (Emphasis added.) Id., 371.

In the present case, the plaintiff filed a two count complaint in which it elected to pursue alternative theories for recovering the debt owed under the promissory note. Count one of the operative complaint sought to foreclose on the mortgage securing the debt, and count two sought to enforce the guarantors’ obligation to pay the debt pursuant to the terms of the guarantee. It was proper for the plaintiff to join those separate causes of action in a single complaint; see Practice Book §§ 10-21 through 10-26; although the plaintiff would not have been entitled to collect twice upon the same debt. See Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 663, 935 A.2d 1004 (2007). Once the judgment of strict foreclosure was rendered and the plaintiff obtained title to the foreclosed property following the running of the law days, § 49-1 acted to bar “any further action upon the mortgage debt, note or obligation” against anyone who was “liable for the payment thereof’ and who had been made a party to the foreclosure action. (Emphasis added.) General Statutes § 49-1.

It is undisputed that the guarantors were parties to the foreclosure action. They were liable for the repayment of the mortgage debt because of their obligation under the guarantee. The plain and unambiguous language of the statute provides that once a plaintiff mortgagee obtains the subject property by strict foreclosure, it is barred from taking further action to collect on the debt, not only against the borrower but against any persons who may be liable for the debt, which would include a guarantor. The plaintiff would have us conclude that the term “obligation” as used in § 49-1 only refers to the obligation directly incurred under the note and mortgage, although it provides no legal support for such a reading of the statute. If that was the intention of the legislature, there would have been no need to include the additional term “obligation,” as the statute expressly barred any further action upon the mortgage debt and note.

At a hearing in damages on the second count of the operative complaint seeking enforcement of the guarantee, the plaintiff would not have been entitled to recover a full repayment of the debt from the guarantors because the plaintiff had been made partially whole by taking title to the mortgaged property. The only measure of damages available to the plaintiff on the second count of the complaint would have been an amount equal to any deficiency judgment. Here, because the plaintiff failed to timely file a motion for a deficiency judgment in accordance with § 49-14, and, in fact, abandoned its attempt to seek adjudication of the untimely motion, a deficiency judgment was never established. We conclude that § 49-1 barred the plaintiff from obtaining any additional remedy from the guarantors based on their obligation to repay the mortgage debt under the guarantee. On the basis of that determination, we further conclude that the guarantors’ notice of defense was not legally insufficient and, therefore, the court improperly granted the plaintiffs motion to strike the notice of defense. Having decided that the guarantors raised a proper defense that barred any deficiency judgment against them in favor of the plaintiff as a matter of law, it follows that the court also improperly rendered the deficiency judgment.

The deficiency judgment is reversed and the case is remanded with direction to vacate the award of damages.

In this opinion the other judges concurred.

       This opinion will refer to Winthrop Properties, LLC, the mortgagor and named defendant, as the defendant.

       The named plaintiff, JP Morgan Chase Bank, N.A., assigned its interest in the subject note and mortgage to 1533 Chapel, LLC, which later was substituted as the party plaintiff. We will refer in this opinion to 1533 Chapel, LLC, as the plaintiff.

       General Statutes § 49-1 provides: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.”

       General Statutes § 49-14 (a) provides in relevant part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. . . .”

       After JP Morgan Chase Bank, N.A., assigned its interest in the subject note to the plaintiff; see footnote 2 of this opinion; the plaintiff filed an amended complaint that is the operative complaint for purposes of this appeal.

       On July 2, 2010, the court issued notice to the parties indicating that the June 28, 2010 judgment of strict foreclosure constituted a partial judgment on the complaint in favor of the plaintiff as to count one.

       Although count two of the complaint remained pending, the defendant was not a party to that count; therefore, the judgment of strict foreclosure was an appealable final judgment. See Practice Book § 61-3.

       The court, Zemetis, J., held a hearing on the guarantors’ objection to the hearing in damages on March 14,2011, at which time the court construed the guarantors’ objection to the heating in damages as raising a special defense to count two, namely, that the plaintiffs failure to obtain a deficiency judgment on count one barred it from collecting any damages under count two based on liability under the guarantee. The court instructed the plaintiff to file a responsive pleading to the notice of defense in order to create a “clean record” for appellate review, which resulted in the filing of the motion to strike.


author: SCHALLER, J.

text:
    CAROLINE HIRSCHFELD v. ROBERT B. MACHINIST
    (AC 33661)
    Gruendel, Beach and SchaUer, Js.

      Argued March 19 —
    officially released August 28, 2012

      Joseph T. O’Connor, for the appellant (plaintiff).

      Kenneth J. Bartschi, with whom were Dana M. Hrelic and, on the brief, Arnold Rutkin, for the appel-llee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Caroline Hirschfeld, appeals from the judgment of the trial court granting her motion for contempt and ordering the defendant, Robert B. Machinist, to pay an additional $36,959 in alimony for the 2007 taxable year and $17,731.97 in attorney’s fees. On appeal, the plaintiff claims that the court incorrectly interpreted a provision in the separation agreement and, in doing so, improperly restricted the plaintiffs ability to obtain documents relating to the defendant’s earned income. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our review. The plaintiff and the defendant had entered into a separation agreement (agreement), the terms of which the court incorporated by reference into the judgment dissolving their marriage on February 2, 2007. Paragraph 3.1 of the agreement provides that the defendant shall pay alimony and child support to the plaintiff according to the following formula: (a) “40 [percent] of the [defendant’s] first $400,000 of earned income in each calendar year . . (b) “30 [percent] of the [defendant’s] earned income from $400,001 to $900,000 in each calendar year”; (c) “20 [percent] of the [defendant’s] earned income from $900,001 per year to $1,500,000 in each calendar year”; and (d) “0 [percent] on the [defendant’s] earned income that exceeds $1,500,001 in each calendar year. . . ,”

Paragraph 3.5 of the agreement provides: “For any year for which the [defendant] pays less than the maximum amount that could be due to the [plaintiff], based upon compensation up to $1,500,000 of gross earned income, the [defendant] shall provide to the [plaintiff] by March 15th of the year following any and all W-2 and 1099 forms, or other documents to corroborate the [defendant’s] earned income for the year ending on the previous December 31st. The [plaintiff] shall be entitled to have such documents reviewed by a [certified [p]ub-lic [a]ccountant of her choosing. If it is determined that the [defendant] has underpaid the amount of alimony due to the [plaintiff] in the preceding year, then in such event the [defendant] shall be charged with the reasonable cost of the accountant’s review. Any arrears or overpayment on the [defendant’s] alimony obligation shall be paid immediately upon the determination of such arrearage or overpayment.”

On September 17, 2010, the plaintiff filed a motion for contempt with the trial court alleging that, based on the documents she had been provided, the defendant had underpaid alimony for the 2007 tax year by “no less than $97,888.24” and that the defendant had “failed, refused and neglected to provide the [plaintiff] with the documents required by their agreement . . . .” The plaintiff also sought $17,731.97 in attorney’s fees.

During a hearing on that motion held on January 27, 2011, the plaintiffs counsel argued that paragraph 3.5 of the agreement required the disclosure of financial documents beyond the defendant’s tax filings. The court disagreed, stating: “I think that agreements, you know, they have to be read as a whole. They have to be read ... to give practical effect to the document. What you are asking this court to do in essence is to ensure, I mean to guarantee that year after year seriatim that this case will never end. Because your client will have in essence a veto or ... a way to basically second guess everything that [the defendant] does from now until his obligation terminates.” The court continued: “This court is not prepared to do that. So bottom line is the agreement is the agreement, and my interpretation of this agreement is clearly that you use the forms, the standard forms. The tax return and the standard forms that corroborate the income, and that’s what you deal with.” On May 31, 2011, the court granted the plaintiffs motion for contempt and ordered the defendant to pay $36,959 in unpaid alimony plus interest, and $17,731.97 in attorney’s fees. This appeal followed.

On appeal, the plaintiff claims that the court incorrectly interpreted paragraph 3.5 of the agreement and, in doing so, improperly restricted the plaintiffs ability to obtain documents relating to the defendant’s earned income. In response, the defendant argues that the plaintiff had received sufficient documents to corroborate the amount of his gross earned income and that requiring further disclosure would, in effect, provide the plaintiff with “unfettered access to [the defendant’s business] records . . . .”

We begin our analysis of the plaintiffs claim by setting forth the applicable standard of review. “It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract .... Accordingly, our review of a trial court’s interpretation of a separation agreement is guided by the general principles governing the construction of contracts. ... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ... If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law. . . . When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 354-55, 999 A.2d 713 (2010); Allen v. Allen, 134 Conn. App. 486, 493, 39 A.3d 1190 (2012). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Hopson v. Hopson, 135 Conn. App. 690, 694-95, 42 A.3d 528 (2012).

Paragraph 3.5 of the agreement states that the defendant is required to provide “any and all W-2 and 1099 forms, or other documents to corroborate the [defendant’s] earned income . . . .” The language of this provision expressly indicates that the parties intended to require the disclosure of those documents necessary to corroborate the amount of gross earned income reported by the defendant. If, as the court concluded, paragraph 3.5 entitles the plaintiff to obtain only the defendant’s tax forms, the plaintiffs review would be restricted to determining whether the defendant made a mathematical error in calculating the sum of alimony due. Although the court was correct to note that such a limitation would provide an expedient resolution to any dispute between the parties regarding unpaid alimony, the agreement clearly and unambiguously contemplates a more thorough review. Consequently, we conclude that the court incorrectly interpreted paragraph 3.5 and improperly restricted the plaintiffs ability to obtain documents relating to the defendant’s earned income.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff claimed in her motion for contempt that the defendant had underpaid alimony for the 2007 tax year by “no less than $97,888.24 . . . .”

       Paragraph 3.3 of the agreement provides that “ ‘gross earned income’ shall mean income earned by the [defendant] for his personal services and shall include, by way of illustration, and not necessarily by way of limitation: wages, bonuses, commissions, director’s fees, management fees, performance fees [and] non-cash compensation awarded to the [defendant] by reason of his personal services, such as stock.” Paragraph 3.3 also provides that earnings that result from “passive investments” are to be excluded from “ ‘gross earned income.’ ”

       We note that this motion was not the first filed by the plaintiff in connection with the defendant’s payment of alimony in 2007. Specifically, the plaintiff filed a motion for contempt on September 18, 2008, claiming that the defendant had failed to produce financial records for the 2007 taxable year pursuant to paragraph 3.5 of the agreement. This motion was never ruled on by the court. On the same day, the plaintiff filed a motion with the court seeking an order that compelled the defendant to participate in a deposition and produce certain financial documents pertaining to his income. This motion was granted by the court, Schofield, J., on November 10, 2008. When the defendant failed to produce documents relating to a family trust; see footnote 4 of this opinion; pursuant to the court’s order, the plaintiff filed a motion for contempt. The defendant filed an objection, which the trial court sustained, stating: “The court reviewed the [November 10, 2008] transcript. Based upon that review and its reading of Oneglia v. Oneglia, 14 Conn. App. 267, 269, [540 A.2d 713] (1988), the court concludes that its [November 10, 2008] order was error.” The court continued: “[UJntil the court acts on a motion to open, the earlier judgment is still intact and neither our rules of practice nor our statutes provide for such a thing as posljudgment discovery.” This ruling is not, however, the subject of the present appeal.

       Specifically, the plaintiff sought the disclosure of documents relating to a family trust under which the defendant, as trustee, might have been entitled to compensation. The plaintiff sought these documents under the theory that the defendant, although entitled to compensation for his services as trustee, declined to accept funds from the trust in order to reduce the amount of alimony owed to the plaintiff.

       Having reached this conclusion, we need not address whether the plaintiff was entitled to the production of additional documents through the process of discovery in light of this court’s ruling in Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988). Furthermore, we agree with the plaintiffs assertion that, because we are remanding the case for additional proceedings, we need not address whether the court properly calculated the amount of alimony due on the record presently before us.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. CARLOS E. GONZALEZ
    (AC 33311)
    Bear, Espinosa and Sullivan, Js.

      Argued April 19 —
    officially released August 28, 2012

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Paul Ro tiro ti, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Carlos Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics 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 the trial court erred by failing (1) to give a special credibility instruction for a cooperating witness and (2) to hold a pretrial hearing on the reliability of the cooperating witness’ testimony. Because the defendant argues both claims simultaneously, and because both claims are closely related, we will consider them together. We affirm the judgment of the trial court.

On the basis of the evidence admitted at trial, the jury reasonably could have found the following facts. On August 5, 2009, the defendant was arrested for possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). Prior to that date, Carlos Colon had been arrested for possession of heroin with intent to sell. In exchange for a promise that Frank Bellizzi, a police officer for New Britain, would inform the prosecutor and the court of his cooperation, Colon offered to assist police in investigating other drug dealers. On August 5, 2009, in the presence of Bellizzi, Colon placed a phone call in Spanish, purportedly to the defendant. Colon testified that he told the defendant that he knew someone who wanted to buy 160 grams of cocaine. The defendant informed Colon that he would be able to sell that amount of cocaine to Colon’s buyer. Colon picked up the defendant at his house and drove him to a restaurant in Meriden. While inside the restaurant, the defendant received a phone call, walked outside, got into a car and drove off. While the defendant was outside of the restaurant, Colon called Bellizzi and informed him that the person who was supposed to give the cocaine to the defendant had arrived. Soon thereafter, the defendant called Colon and asked him to pick him up on the comer of the street. Colon testified that he observed the defendant with a package wrapped in newspaper, which Colon believed to be cocaine. Colon then told the defendant that he would take him to the buyer who was in New Britain. When the defendant and Colon were approaching New Britain, Bellizzi contacted Officer John Prisavage of the New Britain police department to inform him that an individual cooperating with him was going to be in New Britain. Bellizzi informed Prisavage that he wanted the vehicle stopped because the passenger possessed cocaine. When the car was stopped by the New Britain police, the defendant attempted to hide the package of cocaine under the front passenger’s seat. A drug sniffing dog was brought to the scene. The dog alerted the police officers to both the package under the front passenger seat, as well as to the defendant who had been removed from the car.

At trial, neither side submitted a request for jury instructions. The parties, however, had several discussions on the record with the court concerning the court’s various drafts of jury instructions. Specifically, for the instruction regarding the credibility of a cooperating witness, the court stated that it would give a “compromise” instruction. The court stated that it added an instruction because it was concerned by recent case law on the subject of cooperating witness credibility. The court informed both parties that it added the following instruction and explained its reasoning for it. “[W]as there any motive for testifying falsely — and I don’t put names — just motive for testifying falsely and inculpating the accused; you consider extent of a witness’ testimony by other evidence, any benefits received in exchange for his testimony and the circumstances under which the witness provided the information; reasonableness of the witness’ testimony in light of all the other evidence or was he contradicted.” Neither side objected to the proposed instruction. The state responded to the court’s proposed instruction by saying: “Oh, that’s perfectly fine, Your Honor.” Counsel for the defendant responded by saying: “That’s fine, Judge.”

In accordance with the discussions it held with the parties, the court instructed the jury in relevant part as follows: “You as fact finders must determine the credibility of the witnesses who have appeared before you. . . . [I]n deciding what the facts are, you must consider all the evidence. In doing this, you must decide what testimony to believe and which testimony not to believe. You may believe or disbelieve all, none or any part of any witness’ testimony. In making that decision, you may take into account a number of factors including the following: (1) was the witness able to see or hear or know the things about which the [witness] testified; ... (4) did the witness have any interest in outcome of this case or any bias or prejudice concerning any party or any matter involved in the case; (5) was there any motive for testifying falsely in inculpating the accused. You should consider the extent of a witness’ testimony being confirmed by other evidence, any benefits received in exchange for his testimony, and the circumstances under which the witness provided the information to the police or prosecutor . . . .” Neither party objected to the instructions given to the jury.

On appeal, the defendant argues that this court should exercise its supervisory authority over the administration of justice to require trial courts to give special credibility instructions and to hold pretrial reliability hearings regarding cooperating witnesses. The defendant concedes that his claim is unpreserved as he did not request specific jury instructions or a pretrial reliability hearing, or object during any of the pertinent proceedings at trial. He asserts, however, that his claim is reviewable pursuant to this court’s supervisory authority over the administration of justice. The defendant further concedes that a special credibility instruction and a pretrial reliability hearing are not constitutionally required, but he asserts that “a rule should be enunciated as a matter of policy in fight of the potential for miscarriages of justice to occur on account of the testimony of cooperating witnesses such as Carlos Colon.” The defendant argues that Colon’s testimony posed the same dangers as that of a jailhouse informant for whom special credibility instructions are required under State v. Arroyo, 292 Conn. 558, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010), and State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005). We disagree with the defendant.

We begin by setting forth the standard of review. “It is a well established principle that a defendant is entitled to have the jury correctly and adequately instructed on the pertinent principles of substantive law. . . . The charge must be correct in the law, adapted to the issues and sufficient to guide the jury. . . . The primary purpose of the charge to the jury is to assist [it] in applying the law correctly to the facts which [it] find[s] to be established. ... [A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance. . . . Thus, when the substance of the requested instructions is fairly and substantially included in the trial court’s jury charge, the trial court may properly refuse to give such instructions. . . .

“Generally, a [criminal] defendant is not entitled to an. instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely. State v. Ortiz, [252 Conn. 533, 561, 747 A.2d 487 (2000)]; accord State v. Colon, 272 Conn. 106, 227, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). We have recognized two exceptions to this general rule, however: the complaining witness exception and the accomplice exception. . . . Under the complaining witness exception, when the complaining witness [himself] could . . . have been subject to prosecution depending only upon the veracity of his account of [the] particular criminal transaction, the court should . . . [instruct] the jury in substantial compliance with the defendant’s request to charge to determine the credibility of that witness in the light of any motive for testifying falsely and inculpating the accused. ... In order for [such a] request to be applicable to the issues in the case, there must be evidence ... to support the defendant’s assertion that the complaining witness was the culpable party. . . .

“With regard to accomplice witnesses, we have stated that, [w]here it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [he] assisted or aided or abetted in the commission, of the offense with which the defendant is charged. . . . [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Patterson, supra, 276 Conn. 466-68. In State v. Arroyo, supra, 292 Conn. 569, our Supreme Court recognized a third exception — based on the inherent unreliability of jailhouse informant testimony — and created a rule requiring the trial court to give a special credibility instruction to the jury whenever such testimony is given, regardless of whether the informant has received an express promise of a benefit.

Under the facts and circumstances of this case, however, Colon’s testimony does not fit squarely into one of the Patterson-Arroyo exceptions to the general rule against special instructions. First, Colon does not meet the requirements of the first exception as a complaining witness because he could not have been prosecuted for his actions as he was cooperating with the police. Second, Colon does not meet the requirements of the second exception as he was not an accomplice witness because he did not share the same criminal intent as the defendant. Third, Colon does not meet the requirements of the third exception because he was not a jailhouse informant. Indeed, the defendant concedes these points. Instead, without supplying any statutory or decisional authority, he asks us to extend the exception to the rule to include cooperating witness testimony. We agree with the state that the defendant’s claim is not renewable, and we decline his request that we exercise our supervisory authority to extend the exceptions to include cooperating witnesses. We do not find the reasons advanced by the defendant for creating a new rule to be persuasive. Accordingly, we refuse to create a rule requiring trial courts to give special credibility instructions or to hold a pretrial reliability hearing regarding cooperating witnesses.

The judgment is affirmed.

       At trial, the defendant’s counsel stipulated that the package recovered from the car contained cocaine.

       The defendant further conceded that such an instruction is not presently required by our case law but asks us to create a rule requiring such an instruction.