text:
    KATHERINE PAVLISCAK v. BRIDGEPORT HOSPITAL
    (AC 16258)
    Schaller, Hennessy and Daly, Js.

      Argued December 16, 1997
    officially released May 5, 1998

      Michael N. LaVelle, for the appellant-appellee (defendant).

      Thomas E. Mangines, with whom were Frank Burke, Jane Ford, Shaw and, on the brief, Brian A. Mangines, for the appellee-appellant (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Bridgeport Hospital, appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, Katherine Pavliscak, on her claims related to the termination of her employment. The plaintiff cross appeals concerning the propriety of the trial court’s order of remittitur with respect to certain components of the damages that the jury awarded the plaintiff. In its appeal, the defendant claims that the trial court improperly failed to set aside the verdict (1) on the first count of the plaintiffs complaint, which alleged promissory estoppel, (2) on the sixth count of the plaintiffs complaint, which alleged negligent infliction of emotional distress, and (3) with respect to the jury’s separate award of damages to the plaintiff for back vacation pay when those damages were already contained in the parties’ stipulation of lost wages. In her cross appeal, the plaintiff claims that the trial court improperly ordered a remittitur of the damages awarded for front pay and pension benefits after the jury properly awarded such damages. We reverse the judgment of the trial court as to the appeal.

The following facts are relevant to this appeal. The plaintiff commenced employment for the defendant on July 13, 1981, as a licensed practical nurse. At the time she commenced her employment, the plaintiff received a copy of “A Handbook for Employees of Bridgeport Hospital,” which contained the defendant’s employment policies and procedures. The plaintiff acknowledged in writing that she had received a copy of the handbook. During the course of her employment at the hospital, the plaintiff received revised versions of the handbook, which served to update the defendant’s employment policies and procedures.

The plaintiff worked for the defendant in a variety of nursing positions for the first five years of her employment. In 1986, the plaintiff transferred to the hospital’s labor and delivery operating room as a delivery room scrub nurse. She worked in that position until the time of her termination from employment on June 5, 1991. Throughout her term of employment, the plaintiff received favorable performance evaluations, merit salary increases and salary bonuses.

In November, 1990, an incident involving the plaintiff occurred during a cesarean section operation. A lap pad, which is a rectangular piece of gauze used to absorb blood during an operation, was inadvertently left inside the patient after the operation. This was caused by an erroneous accounting of all lap pads utilized during the operation, which accounting was the combined responsibility of the scrub nurse and the circulating nurse in the operating room. The patient ultimately had to undergo a second operation in order to remove the lap pad. Both the plaintiff and the circulating nurse on duty that day were given written warnings by the hospital regarding this breach of operating room procedure.

Another incident involving the plaintiff occurred in May, 1991. Near the end of a cesarean section operation in the labor and delivery operating room, the plaintiff left the sterile environment of the operation to commence preparation for another operation scheduled to occur shortly thereafter. The plaintiff claimed that this was part of the normal protocol for a scrub nurse near the end of an operation. According to the plaintiff, the physicians would finish the operation and there would be little, if any, need for a scrub nurse to remain in the operating room. Therefore, in those instances when another operation was scheduled shortly thereafter, the scrub nurse would leave the ongoing operation in order to prepare the instruments and the sterile environment for the next operation. On May 10, 1991, however, the plaintiffs nursing supervisors directed her to remain in the operating room of the ongoing operation. The plaintiff nonetheless went to the operating room across the hall to prepare the instruments and sterile environment for the next operation scheduled for that day. The plaintiff was again told to return to the ongoing operation. When she did return to the ongoing operation, the physicians had completed the work.

The plaintiff received a written warning on May 13, 1991, for breach of accepted operating room standards based on her actions during this incident. The plaintiff claimed that she received this warning based on a personality conflict with her supervisor at the time. She went on vacation from May 27 through June 4, 1991. When the plaintiff returned to work on June 5, 1991, she was notified by her supervisor that her employment was being terminated, effective immediately. The plaintiff was asked to gather her personal items from her locker and to leave the hospital premises.

In the plaintiffs revised complaint dated August 5, 1993, she sought damages from the defendant arising out of her termination of employment under the following six theories: (1) promissory estoppel, (2) breach of an express contract, (3) breach of the covenant of good faith and fair dealing, (4) breach of an implied contract, (5) negligent misrepresentation and (6) negligent infliction of emotional distress. Prior to trial, the plaintiff withdrew her third claim, good faith and fair dealing, and her fifth claim, negligent misrepresentation. In addition, the parties stipulated to the amount of damages suffered by the plaintiff.

On February 29, 1996, after a five day trial, the jury returned a verdict for the plaintiff on counts one, promissory estoppel, and six, negligent infliction of emotional distress, of her complaint. The jury awarded the plaintiff $55,774 in damages, plus an entitlement to pension benefits for eleven years of hypothetical posttermi-nation employment service. The damages total was comprised of the following components: $19,630 in back pay, $6144 in front pay for three years, and $30,000 for emotional distress. The back pay figure included $9030 for vacation pay.

On March 4, 1996, the defendant filed a motion to set aside the verdict, a motion for judgment notwithstanding the verdict and a motion for remittitur. On March 13, 1996, the plaintiff filed an opposition to the defendant’s motions. On July 25, 1996, the trial court filed its memorandum of decision on the defendant’s motions.

The trial court granted the motion for remittitur for the front pay award of $6144 and for the pension benefit award for eleven years because the jury based liability on the theory of promissory estoppel, and such a finding justified only reliance damages. According to the trial court, the jury’s award of front pay and pension benefits represented expectation or “benefit of the bargain” damages and were therefore inappropriate under a promissory estoppel theory of liability. The trial court ordered the verdict set aside unless, within twenty days, the plaintiff filed a remittitur as to $6144 and the pension award. The trial court denied the defendant’s motion for judgment notwithstanding the verdict.

On August 9,1996, the defendant filed an appeal from the trial court’s judgment claiming that it improperly failed to set aside the verdict with respect to (1) the promissory estoppel count, (2) the negligent infliction of emotional distress count, and (3) the award of damages for vacation pay in the amount of $9030 because the parties had stipulated to the total lost wages during the back pay period. On August 14, 1996, the plaintiff filed a cross appeal claiming that the trial court improperly ordered a remittitur for damages that the jury awarded to the plaintiff.

On March 7, 1997, four days after the defendant’s brief was filed in this appeal, the trial court issued a postcard notice to the parties, stating that the defendant’s March 4, 1996 motion to set aside the verdict and motion for judgment notwithstanding the verdict were granted.

I

As a preliminary matter, we must clarify the procedural context of this case. As stated previously, we asked the parties to address the procedural issues in the case by way of supplemental briefs. After a thorough review of the parties’ arguments and the applicable law, we conclude that it was improper for the trial court to take any action on the remittitur order once this appeal was filed by the defendant.

The automatic stay provision of Practice Book § 4046, now Practice Book (1998 Rev.) § 61-11, provides the basic guideline for the trial court once an appeal has been filed in the case: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . . .” (Emphasis added.) Section 4046 also provides a mechanism whereby the trial court may terminate the automatic stay upon motion and hearing “if the judge who tried the case is of the opinion that . . . the appeal is taken only for delay or that the due administration of justice so requires . . . .”

In this case, there was no termination of the automatic stay, nor was one sought by either party. No hearing was ever held by the trial court to terminate the automatic stay. Our review of the law reveals no specific authority that allows a trial court to enforce a remittitur order by setting aside the verdict after an appeal has been filed. In this case, the plaintiff had already filed her cross appeal challenging the correctness of the remittitur order when the trial court set aside the verdict and rendered judgment notwithstanding the verdict. The trial court executed its order while the underlying basis of that order was being challenged on appeal. It is not appropriate to allow such action to undercut a party’s position.

“It is fundamental to the judicial process that a party’s right to judicial review shall not be obliterated or undermined by the unauthorized exercise of jurisdiction by the court whose doings are, or may be, subject to review. ... A party accorded the right of appellate review is entitled to the full and unhampered exercise of that right in accordance with the applicable rules of practice or statutes. This the defendant was deprived of, and so, he was deprived of due process of law.” Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 298, 435 A.2d 350, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

In this case, the automatic stay served to protect the defendant as well as the plaintiff. The automatic stay prohibited the plaintiff from proceeding to execute and levy on the judgment obtained against the defendant. “The stay does not vacate the judgment obtained by the successful litigant. It merely denies that party the immediate fruits of his or her victory ... in order to protect the full and unhampered exercise of the right to appellate review.” (Citation omitted; internal quotation marks omitted.) Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 414, 525 A.2d 83 (1987).

The defendant claims that the trial court’s action was not a “proceeding to enforce or carry out the judgment” to which § 4046 applies, and, as a result, the automatic stay does not apply in this case. Instead, the defendant claims that the trial court’s action in setting aside the verdict and rendering judgment notwithstanding the verdict merely served to effectuate the trial court’s original order, thereby preserving the status quo pursuant to Hill v. Hill, 35 Conn. App. 160, 173, 644 A.2d 951, cert. denied, 231 Conn. 914, 648 A.2d 153 (1994). We are not persuaded.

In Hill, we held that the trial court’s postjudgment order for the defendant to return an automobile to the plaintiff did not violate the automatic stay because the defendant had obtained possession of the vehicle contrary to the terms of the dissolution decree. We interpreted the trial court’s action in that case as a preservation of the status quo between the parties as previously adjudicated by the trial court rather than a violation of the automatic stay. We cannot interpret Hill to allow the trial court in this case to set aside the verdict and render judgment notwithstanding the verdict. The trial court’s action in Hill served to uphold a relatively insignificant aspect of the overall case, returning one piece of personal property to one of the parties pursuant to the dissolution decree’s division of property.

The trial court’s action in this case served to change completely the complexion of the case while the underlying basis of that action was being challenged on appeal. Prior to the trial court’s action, the case stood in the posture of a verdict for the plaintiff with an outstanding remittitur order still pending. After the trial court’s action, the plaintiff’s verdict was set aside and a judgment for the defendant notwithstanding the verdict was rendered. This is substantially dissimilar to the situation in Hill. As a result, we believe that Hill is inapposite to the present case.

Accordingly, we hold that the trial court’s order setting aside the verdict and rendering judgment notwithstanding the verdict violated the automatic stay provision of § 4046. Therefore, the order is void and the case stands in the procedural posture that existed at the time the defendant’s appeal and the plaintiffs cross appeal were filed. Specifically, there is a jury verdict for the plaintiff along with an outstanding remittitur order. We now address the substantive merits of the parties’ claims raised on appeal.

II

The defendant first claims that the trial court improperly failed to set aside the jury’s verdict with respect to the first count of the plaintiffs complaint, which alleged the existence of a contractual relationship based on promissory estoppel. Specifically, the defendant claims that the doctrine of promissory estoppel does not apply to the facts of this case because the plaintiff was an employee at will, and the hospital did not undertake any actual contractual commitment that she could be discharged only for cause. We agree with the defendant.

When evaluating whether the trial court should have set aside the verdict, our scope of review is limited to ascertaining whether the trial court abused its discretion in failing to set aside the verdict. Young v. Data Switch Corp., 231 Conn. 95, 100, 646 A.2d 852 (1994). “We have often held that [t]he decision to set aside the verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. . . . American National Fire Ins. Co. v. Schuss, 221 Conn. 768, [774,] 607 A.2d 418 (1992); State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992). In our review of the exercise of this discretion, we accord great weight to the trial court’s decision; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); so long as the trial court’s exercise of its discretion does not infringe on the constitutional rights of the litigants to have issues of fact determined by a jury. Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). This right is an obviously immovable limitation on the legal discretion of the court to set aside a verdict .... Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970). Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993); Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 722-29, 627 A.2d 374 (1993).” (Citations omitted; internal quotation marks omitted.) Young v. Data Switch Corp., supra, 100-101.

“Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. . . . Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988).” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997).

We begin with a review of the jury’s verdict. The jury, in its response to the interrogatories that were submitted to it, found for the plaintiff on the promissory estoppel claim, and for the defendant on both the express and implied contract claims. The jury also found for the plaintiff on the emotional distress claim. When read in terms of the language employed in the interrogatories, we conclude that the jury made inconsistent findings with respect to the promissory estoppel claim and the express and implied contract claims. The jury found in connection with the express and implied contract claims that the defendant did not undertake any actual contractual commitment that the plaintiff could be discharged only for just cause, or only after proceeding through all of the steps outlined in its progressive discipline policy. The jury, however, also found in connection with the promissory estoppel claim that the defendant made a clear and definite promise that she would be employed as long as she adequately and satisfactorily performed her job. These findings are inconsistent, particularly when viewed in light of the law of promissory estoppel.

The jury in this case specifically found that the plaintiff failed to prove that the defendant agreed to undertake some form of actual contractual commitment that she would not be terminated without just cause as long as she performed her job properly. The jury also found that the plaintiff failed to prove that the defendant agreed that it would discharge the plaintiff only after proceeding through a progressive discipline policy, unless a ground existed for discharging her without proceeding through all of the steps. Our interpretation of these jury findings indicates that the plaintiff failed to prove that the defendant made any actual contractual commitment that the plaintiff would be terminated only for just cause. Therefore, the plaintiff was an employee at will and could be terminated at any time with or without cause. See Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474-75, 427 A.2d 385 (1980).

This characterization of the nature of the employment relationship is supported by the defendant’s personnel manual, which was introduced'into evidence. Furthermore, the jury findings indicate that the parties did not have an actual contractual commitment to the contrary. In addition, the trial court confirmed this conclusion in its decision on the defendant’s motion to set aside verdict, motion for judgment notwithstanding the verdict and motion for remittitur, when it stated: “The evidence does not support a conclusion [that] there was an employment contract for a definite term. The only evidence as to the term of employment is what is set forth in the employee handbook. The book shows [that] the plaintiff was employed for an indefinite term. She was an at will employee.” (Emphasis added.)

“A contract implied in fact, like an express contract, depends on actual agreement.” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111, 544 A.2d 170 (1988). An implied employment contract may be enforceable under the doctrine of promissory estoppel in order to avoid injustice to an employee who has detrimentally relied on “a clear and definite promise which a promisor could reasonably have expected to induce reliance” by the promisee. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). To prevail on such a claim, the employee must prove by a fair preponderance of the evidence that the employer agreed, “either by words or action or conduct, to undertake [some] form of actual contract commitment” to the employee that she will not be discharged except for just cause. (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995); see also Coelho v. Posi-Seal International, Inc., supra, 112; D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 213.

The jury concluded, however, that the plaintiff did prove her claim of an implied contract based on promissory estoppel. The trial court attempted to explain this finding in its decision on the defendant’s motion to set aside verdict, motion for judgment notwithstanding the verdict and motion for remittitur. The trial court stated: “ [T]he jury found that the defendant promised the plaintiff ‘that she would have employment as long as she adequately or satisfactorily performed her job.’ The plaintiff failed to prove that the parties agreed that a progressive discipline policy would be followed. The plaintiff also failed to prove an express contractual commitment that she could be terminated only for just cause. A reasonable reading of these responses in light of the evidence is that the jury concluded that the plaintiffs employment was terminated in violation of the discharge provisions that appear in the handbook. While the parties did not have an express contractual agreement that these provisions would be followed, the defendant by its words or conduct lead the plaintiff to believe the discharge policy would be followed.”

We do not believe that this interpretation is reasonable given that the law of implied contracts based on promissory estoppel requires an actual agreement between the parties, whereby the employer must agree to undertake an actual contractual commitment. The finding as to the fourth claim that the defendant did not agree to undertake some form of actual contractual commitment clearly conflicts with the finding as to the first claim that the defendant did make a clear and definite promise that the plaintiff would have employment as long as she adequately or satisfactorily performed her job. Our review of the law indicates that it is not possible to make “a clear and definite promise which a promisor could reasonably have expected to induce reliance” by the promisee; D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Corm. 213; while at the same time failing “either by words or action or conduct, to undertake [some] form of actual contract commitment.” (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 15. We conclude, therefore, that the jury’s findings with respect to the fourth claim and its findings with respect to the first claim are inconsistent and not in accord with the law of promissory estoppel. Accordingly, the trial court abused its discretion in failing to set aside the verdict.

Our review of the record, file and transcripts also supports our conclusion that the trial court should have set aside the verdict. There is no support in the transcript for the proposition that the defendant ever made a clear and definite promise to the plaintiff that she would be terminated only for just cause. The source of the plaintiffs belief that she could be discharged only for cause did not arise from statements made to her by hospital personnel, but rather from her own perceptions based on the hospital’s stable reputation in the community, the company benefit plan, the pension plan, the wage increases and the periodic performance reviews. These facts do not form a legally sufficient basis to sustain a claim of promissory estoppel.

“A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. . . . The mere fact that the plaintiff believed the guidelines to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract.” (Citation omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). Therefore, there was insufficient evidence presented to support the jury’s verdict on the promissory estoppel claim. As a result, we conclude that the trial court should have directed a verdict in favor of the defendant.

Ill

The defendant next claims that the trial court improperly failed to set aside the verdict as to the sixth count of the plaintiffs complaint alleging negligent infliction of emotional distress. Specifically, the defendant claims that the mere termination from employment, even if wrongful, does not justify a finding of negligent infliction of emotional distress absent unreasonable conduct by the defendant during the termination process. We agree.

In order to prevail on this claim, the plaintiff must prove that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292 (1952); annot, 1 A.L.R.4th 209 (1980); 2 Restatement (Second), Torts § 313, p. 113 (1965).

Our Supreme Court recently addressed the issue of the proper standard for negligent infliction of emotional distress in the employment setting. “[Negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process. . . . The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior.” (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997).

We believe that, as a matter of law, there is no support in the record for the jury’s finding of negligent infliction of emotional distress. There was no evidence presented regarding any unreasonable conduct by the defendant during the termination process. The evidence showed only that the plaintiff was terminated from employment without advance warning. Since we have concluded that the plaintiff was an employee at will and, therefore, could be fired at any time, there is no support for a finding that the defendant acted unreasonably during the termination process.

There was no evidence that the defendant humiliated the plaintiff publicly. She was told in a private meeting with her supervisors that she was being terminated effective immediately, and that she must take her personal items and leave the hospital premises. While there was undoubtedly some indignity involved with being involuntarily terminated, we cannot say that this rises to the level of unreasonable conduct that would justify liability based on negligent infliction of emotional distress. Therefore, we hold that the trial court was required to exercise its discretion to set aside the verdict on this count. In fact, because we conclude that there was insufficient evidence in the record to support a finding of negligent infliction of emotional distress as a matter of law, the trial court should have directed a verdict in favor of the defendant.

IV

On the basis of our determination of the foregoing issues, it is unnecessary for us to address the defendant’s claim regarding the jury’s improper award of back vacation pay. Since we are ordering a directed verdict in favor of the defendant on the liability issues, there is no need to reach the issue of the proper measure of damages.

V

Because we believe the trial court improperly failed to set aside the verdict with respect to counts one and six of the plaintiffs complaint, it is also unnecessary for us to decide the plaintiffs cross appeal regarding the propriety of the trial court’s remittitur order. Since the trial court should have directed a verdict in favor of the defendant, the issue as to the proper measure of damages for the plaintiff is not relevant.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       After oral argument in this appeal, we asked the parties to file supplemental, simultaneous briefs addressing the following questions:
      “(1) Did the trial court’s order, rendered after the appeal was filed, granting the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict due to the plaintiffs failure to file a remittitur as ordered by the court, violate the automatic stay provision of Practice Book § 4046 [now Practice Book (1998 Rev.) § 61-11]?
      “(2) Did the trial court have authority to grant the defendant’s motion for judgment notwithstanding the verdict following the plaintiffs failure to file a remittitur as ordered by the trial court or was the court limited to setting aside the verdict and ordering a new trial under General Statutes § 52-216 [a]?
      “(3) May the judgment of the trial court be separated into two parts, the remittitur and the twenty day time limit? See Cronin v. Gager-Crawford Co., 128 Conn. 401, 404, 23 A.2d 149 (1941).
      “If so, does an appeal from the remittitur stay the remaining portion of the judgment, specifically the judgment notwithstanding the verdict twenty days after the remittitur was ordered?
      “If not, was the appeal prematurely taken?”

       See footnote 1.

       Because we hold that any action by the trial court was improper based on the § 4046 automatic stay, we do not address the specific nature of the trial court’s action and whether a judgment notwithstanding the verdict was proper under the circumstances. See General Statutes § 52-216a, which provides in relevantpart: “If the court, at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. ...”

       The jury responded to the interrogatories in the following manner:
      “First Claim
      “1. Did the plaintiff prove that the hospital, by its conduct, practices and oral and written statements, made a clear and definite promise to the plaintiff that she would have employment as long as she adequately or satisfactorily performed her job?
      Yes JC_ No_
      “If yes, answer next question; if no, go to question 5.
      “2. Did the plaintiff prove that the hospital had reason to expect the plaintiff would rely on this promise?
      Yes _JX_ No_
      “If yes, answer next question; if no, go to question 5.
      “3. Did the plaintiff prove that she relied on the promise?
      Yes JL No_
      “If yes, answer next question; if no, go to question 5.
      “4. Did the plaintiff prove that when the hospital supervisors discharged her, they did not have a factual basis for a good faith belief that the plaintiff was performing her duties in an unsatisfactory manner?
      Yes JL No_
      “Second Claim
      “5. Did the plaintiff prove that the plaintiff and defendant agreed that the hospital would only discharge the plaintiff after proceeding through a progressive discipline policy, unless a ground existed for discharging her without proceeding through all the steps?
      Yes_ No X
      “If yes, answer next question; if no, go to question 8.
      * #
      “Fourth Claim
      “8. Did the plaintiff prove that the hospital agreed with her, either by words or actions or conduct, to undertake some form of actual contractual commitment to her under which she could not be terminated without just cause so long as she performed her job properly?
      Yes_ No X
      “If yes, answer next question; if no, go to question [10].

        “Sixth Claim
      “10. Did the plaintiff prove one of the following claims: first claim, second claim or fourth claim?
      Yes _X_ No_
      “If yes, answer question 11.
      “If no, do not answer the next two questions.
      “11. Did the plaintiff prove that the hospital should have realized that its conduct involved an unreasonable risk of causing emotional distress, and that that distress, if it resulted, might result in illness or bodily harm?
      Yes _X_ No
      “If yes, answer question 12.
      “If no, do not answer the next question.
      “12. Did the plaintiff prove that she suffered emotional distress and that the hospital’s conduct was a proximate cause of the emotional distress for which she seeks compensation?
      Yes _X_ No ”

       The doctrine of promissory estoppel is derived from the Restatement of Contracts § 90, which provides in relevant part: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” 1 Restatement (Second), Contracts § 90, p. 242 (1981).
      Promissory estoppel provides an alternative that allows enforcement of a promise even without the usual indicia of conventional bargained for consideration. See S. Henderson, “Promissory Estoppel and Traditional Contract Doctrine,” 78 Yale L.J. 343, 345-46 (1969). The doctrine serves as a consideration substitute to allow enforcement of contracts whereby one party has detrimentally relied on an express or implied promise even though traditional bargained for legal detriment is not present. See E. Yorio & S. Thel, “The Promissory Basis of Section 90,” 101 Yale L.J. Ill, 111-12 (1991). Promissory estoppel, therefore, is not a separate cause of action available to plaintiffs, but rather selves to allow enforcement of an otherwise validly formed contractual commitment that lacks traditional consideration.

       See jury interrogatory no. 8 in footnote 3.

       See jury interrogatory no. 5 in footnote 4.

       The defendant’s personnel manual, “A Handbook for Employees of Bridgeport Hospital,” contains the following language on page five: “In consideration of their employment, employees agree to conform to the rules and regulations of Bridgeport Hospital. Subject to the notice provisions contained in this booklet, employment and compensation can be terminated, with or without cause, at any time, at the option of either the Hospital or the employee. The Hospital retains all common management rights, including, but not limited to, the right to hire and fire, to malee rules and enforce discipline, to lay off for lack of work, and to determine hours of work, job duties and operations. No supervisor or department head, other than the president or the vice president for Human Resources, has any authority to enter into any agreement for employment for any specified period of time or to make any agreement contrary to the foregoing.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    ANTONIO FERREIRA v. ZONING BOARD OF APPEALS OF THE CITY OF SHELTON
    (AC 16932)
    Lavery, Spear and Hennessy, Js.
    Argued January 27
    officially released May 5, 1998

      Thomas J. Welch, with whom, on the brief, was John H. Welch, Jr., for the appellant (defendant).

      William J. Ryan, Jr., for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant zoning board of appeals of the city of Shelton (board) appeals from the trial court’s judgment sustaining the plaintiffs appeal from the board’s denial of his application for a certificate of approval for the location of a used car dealership and the trial court’s granting, sua sponte, a zoning variance to the plaintiff. The board claims that the judgment should be reversed because the trial court improperly (1) substituted its judgment for that of the board when it found that the proposed use of the site as a used car dealership complied with General Statutes § 14-55, and (2) granted a variance sua sponte when the only relief requested on appeal was the issuance of a certificate of approval for the location pursuant to General Statutes § 14-54. We reverse the judgment of the trial court.

The following facts are necessary to resolve this appeal. On July 18,1996, the plaintiff, Antonio Ferreira, applied to the board for a certificate of approval to operate a used car dealership at 78 Bridgeport Avenue in Shelton pursuant to General Statutes § 14-53. The proposed location is adjacent to a restaurant, and across the street from an ice cream parlor and a medical office. In accordance with § 14-55, the board gave notice of a public hearing on the application.

On August 20, 1996, the plaintiff attended the regular meeting and public hearing of the board. The following information was presented. In 1959, the proposed location was approved and licensed as a car sales place. The location had not been used for that puipose for several years, during which time, according to board member Matthew Gallo and based on his observations, the conditions on Bridgeport Avenue had changed considerably.

During the hearing, the board inquired concerning both the current and proposed uses of the property, with particular attention to the percentage of space utilized, available frontage area and the impact on traffic. The plaintiff testified that he planned to display approximately sixteen cars at a time and that parking for the public would be situated along the front of the building. Incidental to his business, the plaintiff intended to perform minor repairs on the cars he intended to sell. The board chairman, Gerald Glover, concerned about traffic, said, “I think it’s a very congested place to have people possibly slowing down to find or look at used cars.” Glover also expressed concern about the size of the property and its ability to support two businesses, the existing restaurant and the proposed used car business. The plaintiff did not present any testimony to rebut the board members’ statements regarding the current amount of traffic or the increase in it if the dealership opened, nor did he introduce maps indicating the division of property between the existing business and the one he proposed.

The board unanimously voted to deny the plaintiffs application, concluding that the proposed location was not suitable for use as a used car dealership and that the business would impede the flow of traffic on Bridgeport Avenue. The plaintiff appealed this decision to the Superior Court by writ and complaint. The plaintiff requested that the trial court direct the board to grant his application and award reasonable fees and expenses pursuant to General Statutes § 4-184a (b).

On January 21, 1997, the parties appeared before the trial court, Mancini, J., where testimony and oral argument from counsel were presented. On February 7, 1997, the trial court issued its memorandum of decision wherein it reversed the board and granted the plaintiff a variance for the use requested. The trial court reasoned that, because the proposed use was permitted by existing zoning laws of the city of Shelton, it was presumed to be suitable. Further, on the basis of a personal inspection of the site, the court concluded that “there is a suitable amount of land necessary to conduct said business with limitations.” The board now contests that judgment on appeal.

When determining whether to issue a certificate of approval pursuant to § 14-55, the board must consider if the location is suitable for the proposed business. New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 543, 227 A.2d 427 (1967). The board must consider the following factors when making its decision: the proximity of schools, churches and theaters to the proposed business, as well as traffic conditions, such as the width of the highway and the effect on public travel. Id. The board asserts that when the trial court concluded that the proposed site met the requirements of § 14-55, it ignored the appropriate standard of review; to wit, that the trial court must uphold the board’s decision as long as it is supported by the record.

As a preliminary note, the board acts as an agent of the state when it undertakes the consideration of a certificate of approval and, therefore, it is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Its actions are appeal-able to the Superior Court. See Mason v. Board of Zoning Appeals, 143 Conn. 634, 637, 124 A.2d 920 (1956). The role of the Superior Court is not to substitute its judgment on questions of fact for that of the agency where substantial evidence exists on the record to support the agency’s decision. See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993); see General Statutes § 4-183 (j) (5). The board claims that it had ample evidence before it to deny the application for a certificate of approval.

In accordance with the mandates of § 14-55, a certificate of approval cannot be issued until the board finds that the location is suitable for the proposed use. One of the primary considerations of the board must be the effect of the business on traffic. See General Statutes § 14-55. The plaintiff argued on appeal to the Superior Court that the record was void of substantial evidence from which the board could consider the factors required by the statute. We disagree.

An administrative agency can find that substantial evidence exists if “the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Caro-thers, 218 Conn. 580, 601, 590 A.2d 447 (1991). The record shows that the members of the board inspected the proposed location, considered the current amount of traffic, the number of businesses in the immediate vicinity of the location and the congestion that could develop as a result of the opening of the proposed business in that location. The board considered the evidence presented by the plaintiff addressing those factors, the knowledge gained by personal observation and the information from proponents and opponents at a public hearing. The board’s knowledge acquired through personal observation is proper evidence to be considered. See Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 562, 192 A.2d 40 (1963); Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 522, 162 A.2d 711 (1960).

“When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA], Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). We look to see if the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 506-507, 611 A.2d 444 (1992).

We conclude that the trial court agreed with the board that the property is on a busy highway and that many businesses are located in the area. The trial court disagreed, however, with the board on the size of the lot. It is not the role of the trial court to substitute its judgment for that of the board. The trial court did not find that the board acted “unreasonably, illegally, or in abuse of discretion”; id.; and, accordingly, should have dismissed the plaintiffs appeal. We conclude that the trial court improperly substituted its judgment for that of the board contrary to § 4-183 (j).

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § 14-53 provides in relevant part: “Location of business to be approved. No place of business for the sale of new motor vehicles or used motor vehicles or for repairing shall be established or maintained unless the person establishing or maintaining such place of business has procured from the commissioner a certificate stating that, in the opinion of said commissioner, the location of such place of business would not imperil the safety of the public. The commissioner may revoke any such certificate whenever, in his opinion, such place of business will, by reason of its location, imperil the safety of the public. . . .”

       General Statutes § 14-55 provides in relevant part: “Hearing. In any town, city or borough the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application. Notice of the . . . hearing shall be published .... All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing. . . . The reasons for granting or denying such application shall be stated by the board or official. Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered. Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough. No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel. In any case in which such approval has been previously granted for any location, the local authority may, in its discretion, waive the requirement of a hearing on a subsequent application. In addition, the local authority may, in its discretion, waive the requirement of a hearing on an application wherein the previously approved location of a place of business is to be enlarged to include adjoining or adjacent property.”

       The variance restricted the number of cars allowed on the property to twenty and the business to that of the resale of cars. Furthermore, the trial court required the plaintiff to erect a fence between the restaurant and the used car dealership.

       The trial court used the term variance when it set conditions to be met by the plaintiff before a certificate of approval could be granted. A variance was not requested by any of the parties in this case nor was it a subject of discussion at the board hearing or trial court hearing. It was first introduced into the proceedings by the trial court in its decision.

       General Statutes § 4-183 (j) mandates that the trial court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .”


author: O’CONNELL, C. J.

text:
    CHASE MANHATTAN BANK/CITY TRUST v. AECO ELEVATOR COMPANY, INC.
    (AC 16700)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued March 3
    officially released May 5, 1998

      Kevin L. Bums, with whom, on the brief, was Annmarie P. Briones, for the appellant (defendant).

      Joseph J. Passaretti, Jr., for the appellee (plaintiff).

      Jon A. August, for the appellee (intervening plaintiff).
   Opinion

O’CONNELL, C. J.

The plaintiff, Chase Manhattan Bank/City Trust (Chase Manhattan), brought this action against the defendant, AECO Elevator Company, Inc., for reimbursement of workers’ compensation payments made to John R. Huggins. Huggins, an employee of Chase Manhattan, was injured when he fell while stepping into an elevator installed and maintained by the defendant. Huggins intervened in the action as a coplaintiff seeking damages based on negligence. The defendant was defaulted for failure to appear, and following a hearing in damages, the trial court rendered judgment for Chase Manhattan in the amount of $39,878.50 and judgment for Huggins in the amount of $50,220.

The defendant sought to open both judgments, claiming that (1) it had no actual notice of the pendency of the action by Chase Manhattan, (2) it had not been properly served with Huggins’ intervening complaint and (3) valid defenses existed at the time the judgments were rendered. The trial court initially granted the defendant’s motion to open the judgment as to Chase Manhattan but, following reargument, reinstated that judgment. The trial court denied both the defendant’s motion to open the judgment as to Huggins and its motion to reargue that motion. The defendant now appeals the trial court’s refusal to open both judgments and its denial of the motion to reargue the motion to open the judgment as to Huggins. We affirm the trial court’s judgments.

The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 4007, now Practice Book (1998 Rev.) § 61-10; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746 (1998); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court, stating its reasons for refusing to open the judgments or to allow reargument on the motion to open the judgment in favor of Huggins. See Practice Book § 4059 (a), now Practice Book (1998 Rev.) § 64-1 (a).

Practice Book § 4059 (b), now Practice Book (1998 Rev.) § 64-1 (b), clearly establishes the procedure to be followed by an appellant in the event that the trial court fails to comply with § 4059 (a). In the present case, the defendant did not avail itself of this procedure, thereby failing to ensure an adequate record for review.

Under these circumstances, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997); see also State v. Rios, 30 Conn. App. 712, 719-20, 622 A.2d 618 (1993) (O'Connell, J., concurring).

This court has repeatedly emphasized the necessity of compliance with § 4059. See Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997); Alix v. Leech, supra, 45 Conn. App. 4-5; Sinnott v. Sinnott, 44 Conn. App. 153-54, 687 A.2d 556 (1997); Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553-56, 636 A.2d 1370, cert. denied, 229 Conn. 907, 640 A.2d 120 (1994) (appeal withdrawn October 17, 1994); Holmes v. Holmes, supra, 32 Conn. App. 319-20; State v. Rios, supra, 30 Conn. App. 715-16; see also Cohen v. Cohen, 41 Conn. App. 163, 168-69, 674 A.2d 869 (1996); State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

Because we have not been provided with the trial court’s factual or legal basis for its rulings on the defendant’s motions, we cannot reach the issue of whether the trial court acted properly. The record is inadequate for our review of the defendant’s claims.

The judgments are affirmed.

In this opinion the other judges concurred.

       Practice Book § 4059 (a) provides: “Except in small claims actions and as provided in Sec. 4060, (1) in judgments in trials to the court in civil and criminal matters, (2) in decisions on aggravating and mitigating factors in capital penalty hearings conducted to the court, (3) in decisions upon motions to dismiss under Sec. 814, (4) in decisions on motions to suppress under Sec. 820, and (5) in decisions granting a motion to set aside a verdict under Sec. 320, and (6) in any other decisions which constitute a final judgment for purposes of appeal under Section 4000, but do not terminate the proceedings, the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office."

       Practice Book § 4059 (b) provides: “If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by paragraph (a), the appellant may file with the appellate clerk a notice that the decision has not been so filed in compliance with paragraph (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with paragraph (a).”


author: SULLIVAN, J.

text:
    BRIAN STICKNEY v. SUNLIGHT CONSTRUCTION, INC., ET AL.
    (AC 17181)
    Spear, Hennessy and Sullivan, Js.

      Argued March 4
    officially released May 12, 1998

      John T. Scully, for the appellant (defendant Commercial Union Insurance Companies).

      Jason M. Dodge, for the appellee (defendant Aetna Casualty and Surety Company).
   Opinion

SULLIVAN, J.

The defendant Commercial Union Insurance Companies (Commercial Union) appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s decision to open and modify a voluntary agreement between the plaintiff, Brian Stickney, and his employer, the defendant Sunlight Construction, Inc. (Sunlight), and to substitute Commercial Union for Aetna Casualty and Surety Company (Aetna) as the insurer of Stickney’s claim. On appeal, Commercial Union claims that the board improperly concluded that (1) the workers’ compensation commission had jurisdiction to consider Aetna’s motion to open the voluntary agreement, (2) Aetna was not estopped from denying coverage for failing to notify the commission of its cancellation of the workers’ compensation insurance policy issued to Stickney’s employer, (3) Aetna satisfied the criteria in General Statutes (Rev. to 1985) § 31-315 for opening a voluntary agreement, and (4) Aetna timely filed its motion to open the voluntary agreement. We conclude that the commission did not have jurisdiction to consider Aetna’s motion to open and modify the voluntary agreement.

The record reveals the following relevant facts and procedural history. On February 7, 1985, Stickney was injured during the course of his employment when he slipped and fell on a patch of ice. Thereafter, Sunlight filed through its insurance agent an injury report with Aetna. Aetna had issued a workers’ compensation insurance policy to Sunlight for the period of April 11, 1984, through April 11, 1985, but canceled the policy for nonpayment of premium in December, 1984, prior to the date of Stickney’s injury. Aetna failed to verify its coverage for this claim, however, and issued a voluntary agreement for payment of benefits to Stickney, which agreement was approved by the commission on June 2, 1986. It is undisputed that Aetna did not notify the board of commissioners of its cancellation of Sunlight’s policy as required by General Statutes (Rev. to 1985) § 31-348.

Subsequent to Aetna’s cancellation, Sunlight procured workers’ compensation insurance from Commercial Union. The Commercial Union policy covered the period from January 17,1985, through January 17,1986, and, therefore, was effective at the time of Stickney’s injury. It is undisputed, however, that Commercial Union never filed proof of coverage with the board of commissioners as required by § 31-348.

In 1991, when Stickney’s claim was reactivated because of recurring symptoms, Aetna discovered that its policy with Sunlight had been canceled prior to the date of Stickney’s injury. Consequently, Aetna filed with the commission a motion to open and modify the voluntary agreement on the ground that Aetna was not Sunlight’s insurer at the time of Stickney’s injury, and to substitute Commercial Union for Aetna in the voluntary agreement. In that motion, Aetna sought a determination of which insurer was responsible for Stickney’s workers’ compensation benefits and, if Commercial Union was adjudged responsible, Aetna sought reimbursement from Commercial Union of the benefits Aetna paid to Stickney.

A formal hearing was held on December 15,1992. On May 13, 1993, the commissioner denied Aetna’s motion on the ground that the commission did not have subject matter jurisdiction to decide which insurer was liable to pay the claim because that issue involved a determination of rights under contract law. Aetna appealed the commissioner’s decision to the board and, on August 2,1994, the board reversed the commissioner’s decision and remanded the case for further proceedings on the merits of the remaining issues. On remand, the commissioner granted Aetna’s motion to open the voluntary agreement and substituted Commercial Union in lieu of Aetna as the insurer of Stickney’s claim. The board affirmed the commissioner’s decision on April 25,1997, and this appeal followed.

The standard of review in an appeal from a decision of the board is well settled. “The decision of the compensation review [board] must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988); Infante v. Mansfield Construction Co., 47 Conn. App. 530, 537, 706 A.2d 984 (1998).

Commercial Union claims that the board improperly reversed the commissioner’s finding that the commission lacked subject matter jurisdiction to decide issues of contract law because such issues are outside of the statutory authority of the commission. Aetna contends that the commissioner had jurisdiction to consider Aetna’s motion to open under the broad equitable powers provided to the commissioner in §§ 31-315 and 31-278.

“Jurisdiction of the [subject matter] is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . .

“This concept, however, is not limited to courts. Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). Our Supreme Court has “previously observed that the workers’ compensation commission, like any administrative body, must act strictly within its statutory authority .... It cannot modify, abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power. . . . [Id.], citing Castro v. Viera, [supra, 207 Conn. 428]. A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963); see also Kinney v. State, 213 Conn. 54, 60, 566 A.2d 670 (1989). [I]t is settled law that the commissioner’s jurisdiction is confined by the [Workers’ Compensation Act] and limited by its provisions. . . . Gagnon v. United Aircraft Corp., 159 Conn. 302, 305, 268 A.2d 660 (1970).” (Internal quotation marks omitted.) Discuillo v. Stone & Webster, 242 Conn. 570, 576, 698 A.2d 873 (1997). A workers’ compensation commissioner is not an “article fifth” judge. Powers v. Hotel Bond Co., 89 Conn. 143, 148, 93 A. 245 (1915).

Aetna’s contention that §§ 31-278 and 31-315 confer jurisdiction on the commissioner is without merit. Section 31-278 simply states that a commissioner “shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. . . .” That section merely describes the procedural powers conferred on the commissioner by the Workers’ Compensation Act to enable him to fulfill his duties thereunder. Section 31-315 provides that voluntary agreements are subject to modification on the request of either party where “the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement ... in order properly to carry out the spirit of this chapter.” In such cases, the commissioner retains jurisdiction over the agreements for the compensation period applicable to the injury in question. General Statutes § 31-296 specifies that the voluntary agreement is between the “employer and an injured employee,” and § 31-315 specifies that “parties” may request modification of such an agreement. In this regard, we note that Aetna is not a signatory to the voluntary agreement and conclude that it has no standing to raise insurance coverage claims in a motion for modification. In addition, the change Aetna sought to effect in the terms of the agreement does not affect the injured employee and therefore is not within the purview of § 31-315.

The compensation act involves the legal relationship between employers and employees. Aetna’s argument in this case ignores the well settled rule that “Workmen’s Compensation Acts such as ours are founded upon the theory of a contract existing between the workman and employer . . . .” (Emphasis added.) Powers v. Hotel Bond Co., supra, 89 Conn. 145. “The purpose of the act is to compensate employees for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on employers.” (Internal quotation marks omitted.) Cro-chiere v. Board of Education, 227 Conn. 333, 349, 630 A.2d 1027 (1993). Under the act, “the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. ... In return, the employee is compensated for his or her losses without having to prove liability. ... In a word, these statutes compromise an employee’s right to a common law tort action for [work-related] injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381, 698 A.2d 859 (1997). General Statutes § 31-297 gives the commission the authority to hear claims between an employer and an injured employee where a right to compensation exists. Commercial Union’s liability in the case, if any, involves issues of contract law independent of the rights of the injured employee and his employer.

The foregoing principles are evident in our Supreme Court’s decision in Witchekowski v. Falls Co., 105 Conn. 737, 136 A. 565 (1927). In Witchekowski, the plaintiff suffered a compensable injury on May 25, 1923, although he was not disabled therefrom until September 19,1923. His employer carried a workers’ compensation policy with Liberty Mutual Insurance Company, which expired on August 1, 1923, prior to the date of the plaintiffs disability. The employer carried a similar policy with American Mutual Liability Insurance Company for the period following August 1, 1923. The commissioner’s award provided that all reasonable medical expenses incurred by the plaintiff should be paid one-half by each of the two insurers and that they should also pay the compensation awarded to the plaintiff in the same proportion. American Mutual appealed from this decision. On appeal, our Supreme Court observed that “[w]hich of the two insurers would be obligated to make the payments consequent upon an injury would have to be determined by the provisions of the policies. The accident which caused the plaintiffs disabilities did not occur during the policy period covered by the policy issued by [American Mutual], and the fact that the disability did not result until after the beginning of that period would not make [American Mutual] liable for the payments due in consequence thereof.” Id., 740. The court stated that the commissioner’s attempt to determine which of the two insurers was liable for payments already made by the employer “was clearly to exceed his jurisdiction.” Id., 741, citing Hargraves v. George F. Shevlin Mfg. Co., 179 N.Y. App. Div. 477, 165 N.Y.S. 960 (1917).

The decision of the compensation review board is reversed and the case is remanded with direction to sustain the defendant Commercial Union Insurance Companies’ appeal to the board.

In this opinion the other judges concurred.

       General Statutes § 31-296 provides in relevant part: “Volunlary agreements. If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. ...”

       General Statutes (Rev. to 1985) § 31-315 provides: “Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact, have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       Our conclusion makes it unnecessary to address the other issues raised by Commercial Union in this appeal.

       General Statutes (Rev. to 1985) § 31-348 provides: “Compensation insurance companies to report their risks. Every insurance company writing compensation insurance shall report in writing to the board of commissioners, in accordance with rules by them prescribed, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within one week from the date of the policy. The cancellation of any policy so written and reported shall not become effective until one week after notice of such cancellation has been filed with the commissioner or commissioners with whom such report is filed. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense.”

       As previously set out, the board reversed the commissioner’s 1993 decision to deny Aetna’s motion to open for lack of subject matter jurisdiction. Commercial Union did not, however, attempt to appeal from the board’s decision at that time. This raises a question of whether the board’s decision reversing and remanding the case to the commissioner constituted an appeal-able final judgment and, therefore, whether Commercial Union’s present appeal is timely. See General Statutes § 31-301b; Ericson v. Perreault Spring & Equipment Co., 38 Conn. App. 71, 72-73, 658 A.2d 982 (1995). In this regard, we note that this court may entertain appeals even if untimely and even where there is a timely motion to dismiss. See Banks v. Thomas, 241 Conn. 569, 586, 698 A.2d 268 (1997).

       General Statutes (Rev. to 1985) § 31-278 provides in relevant part: “Powers and duties of commissioners. Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. He shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. . . .”

       Article fifth, § 1, of the constitution of Connecticut provides: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”

       See footnote 2.