text:
    HERITAGE SQUARE, LLC v. JOHN EOANOU
    (AC 19561)
    Schaller, Zarella and O’Connell, Js.
    Argued September 19, 2000
    officially released January 9, 2001

      Harry Hirsch, for the appellant (defendant).

      Christopher Lagano, for the appellee (plaintiff).
   Opinion

ZARELLA, J.

The defendant, John Eoanou, appeals from the judgment of the trial court rendered in favor of the plaintiff, Heritage Square, LLC, on its claim that the defendant breached a commercial lease by failing to pay rent. The defendant claims that the court improperly determined (1) that the defendant was not constructively evicted, (2) that the defendant was required to pay the plaintiff rent from the time the defendant vacated the premises until the time the premises were rerented, (3) the amount of attorney’s fees and (4) the amount of damages. We affirm the judgment of the trial court.

The following are the undisputed facts, and the facts found by the court, which are relevant to our resolution of this appeal. On or about March 18, 1997, the plaintiff and the defendant entered into a written commercial lease agreement for a period of five years commencing on April 1,1997. On several occasions during the course of the defendant’s occupancy, wastewater leaked into the leased premises. The plaintiff timely repaired each leak. In September, 1998, a major sewer leak affected the premises. The defendant did not make a rental payment for the month of September. The plaintiff brought a summary process action against the defendant for nonpayment of rent on or about September 15, 1998. On or about November 18, 1998, the plaintiff and the defendant stipulated to a judgment of possession with a stay of execution through December 18,1998. Judgment was entered in accordance with the stipulation. In December, 1998, the defendant vacated the premises.

The plaintiff brought the present action in 1999, alleging that the defendant owed $17,060.68, including rent, use and occupancy, attorney’s fees and costs of collection. The defendant responded by filing an answer and a special defense of constructive eviction. The defendant also filed a counterclaim, alleging that the plaintiffs failure to maintain the premises caused him to incur additional expenses and damage to his personal property. On April 19, 1999, the court rendered judgment in favor of the plaintiff, and the defendant appealed on May 10, 1999.

In its oral decision, the court found that the defendant vacated the premises in December, 1998, as a result of the judgment in the summary process action, and the plaintiff rerented the premises as of April, 1999. The court further found that (1) the plaintiff did not cause the sewer problem, (2) the defendant did not give the plaintiff a reasonable time to correct the problem and (3) the defendant did not elect to treat the plaintiffs conduct as a constructive eviction. Moreover, the court found that the plaintiff addressed the sewer problem within a reasonable time. Accordingly, the court rendered judgment in favor of the plaintiff for $15,196.94 for outstanding rent up to March 31, 1999. The court further awarded to the plaintiff $1863.74 in summary process legal fees and court costs that it had incurred in the 1998 summary process action, and $2000 in attorney’s fees for the present action. In total, the court awarded the plaintiff damages of $19,060.68. The court also ruled in favor of the plaintiff on the defendant’s counterclaim.

I

The defendant first claims that the court improperly determined that the plaintiffs failure to clean the premises and to repair the damage caused by a sewage pipe break did not constitute a constructive eviction and, thus, precluded the plaintiff from recovering any lost rent from the defendant. We disagree.

We review the factual findings of the trial court under our well established clearly erroneous standard. Haynes Construction Co. v. Cascella & Son Construction, Inc., 36 Conn. App. 29, 32, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994). “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 678-79, 760 A.2d 989 (2000).

We begin our analysis by noting that “[a] constructive eviction arises where a landlord, while not actually depriving the tenant of possession of any part of the premises leased, has done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant’s promise to pay rent.” (Internal quotation marks omitted.) Baretta v. T & T Structural, Inc., 42 Conn. App. 522, 526, 681 A.2d 359 (1996). “In addition to proving that the premises are untenantable, a party pleading constructive eviction must prove that (1) the problem was caused by the landlord, (2) the tenant vacated the premises because of the problem, and (3) the tenant did not vacate until after giving the landlord reasonable time to correct the problem.” Id.

The court found that the defendant failed to prove that the plaintiff caused the sewage problem. The court concluded that there was no credible evidence to support that element of constructive eviction. Moreover, the court determined that the witnesses for the plaintiff were credible. “The sifting and weighing of evidence is peculiarly the function of the trier [of fact].” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). “[Nothing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony.” (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” Smith v. Smith, supra, 123. That determination of credibility is a function of the trial court.

Next, the court found that the defendant did not satisfy the second element of proving a constructive eviction. The court specifically found that the defendant did not vacate the premises because of the sewage leak. Rather, he vacated the premises in accordance with the stipulated judgment in the summary process action. In addressing that element, the court noted that according to the stipulated agreement, the defendant was required to vacate the premises by December, 1998.

Finally, the court determined that the defendant did not allow the plaintiff a reasonable amount of time to correct the problem as required under the third prong of the constructive eviction test. Those findings are supported by the record. We conclude, therefore, that the court correctly found that the defendant was not constructively evicted.

II

The defendant’s second claim is that the court improperly concluded that he was required to pay rent from the time he vacated the premises until the time the premises were rerented without any evidence from the plaintiff as to when the premises were repaired. The defendant further argues that if the court had determined that the premises were uninhabitable from November 3,1998, through December 10, 1998, then no rent was due until the plaintiff repaired the premises. The defendant recognizes that we must agree that the court was incorrect in finding that there was no constructive eviction for him to prevail on his second claim. Having determined, however, that the court properly found that there was no constructive eviction, this claim must fail.

Ill

The defendant next claims that the court improperly determined the amount of attorney’s fees for the summary process action. The defendant alleges that the attorney’s fees for the summary process action were only $541.38. That claim is not supported by the record. The court determined that the attorney’s fees totaled $1863.74, in accordance with the plaintiffs ledger, which was entered into evidence at trial. We conclude, therefore, that the evidence was sufficient to support the court’s determination of attorney’s fees.

IV

The defendant finally claims that the court improperly determined the award of damages. The defendant argues that the court improperly included real estate commission fees of $1823.40 in the final award of damages without supporting testimony. We disagree.

“A lease is nothing more than a contract. . . . Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. ... As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant’s breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach.” (Citations omitted; internal quotation marks omitted.) Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 389, 558 A.2d 265 (1989).

In the present case, the lease and the ledger were entered into evidence without objection. Additionally, the plaintiff presented sufficient testimony to support the total outstanding balance. The lease agreement also supported a claim for real estate commission fees. The agreement provided that in the event of a default or dispossession by summary proceeding, the defendant was responsible for reasonable expenses in connection with reletting, including legal expenses, attorney’s fees, brokerage and advertising. Therefore, the award of real estate commission fees as part of the $17,060.68 was proper, and in accordance with the ledger and the lease agreement. We conclude, therefore, that the court correctly determined the award of damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant withdrew several of his briefed issues at oral argument. Our analysis, therefore, is limited to four of the eight issues discussed in the defendant’s brief to this court.

       The plaintiffs complaint initially sought $39,646 in damages. In April, 1999, the plaintiff amended its complaint by reducing its claimed damages to $17,060.68.

       The court noted that the defendant did not treat the plaintiffs conduct as a constructive eviction because he continued to occupy the premises and continued to pay rent until September, 1998.

       The defendant does not challenge the award of attorney’s fees in the amount of $2000 for the present action.

       The court found that ”[a]s to the water leaks, even assuming that there was a constructive eviction, with the defendant continuing occupancy and continuing] to pay the rent, it’s a clear indication to me that the tenant elected not to treat the landlord’s conduct as a constructive eviction.”

       The court stated that “[w]hen you consider all the factors involved when the tenant claimed that the premises were not habitable for all those months during the water leakage, then a court can come to only one conclusion: That the defendant really surrendered the premises because of the summary process action.”

       In his brief, the defendant asserts that “[i]f the court agrees that the facts support the defendant’s position that the premises were untenantable and unusable by the tenant during the period November 3, 1998, through at least December 10,1998, then it follows that no rent was due the plaintiff until the plaintiff could show that the premises were repaired and put into tenantable condition. Since the plaintiff failed to show when the premises were made tenantable and usable, the plaintiff should be precluded from being awarded lost rents as erroneously awarded by the court.”

       The plaintiff can properly recover attorney’s fees for the summary process action because the lease agreement specifically provided that the defendant is responsible for attorney’s fees in the event of a dispossession by summary proceeding.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    KELLY RENZ v. ALLSTATE INSURANCE COMPANY ET AL.
    (AC 20367)
    Zarella, Pellegrino and Peters, Js.
    Argued October 27, 2000
    officially released January 9, 2001

      Katherine Meshako, for the appellant (plaintiff).

      MaMhew Dallas Gordon, for the appellee (named defendant).
   Opinion

PETERS, J.

The dispositive issue in this case is whether the legislature, in enacting what is now General Statutes § 38a-336 (d), which prohibits the stacking of automobile insurance coverages, intended to have the prohibition apply to insurance policies issued in the gap period between the enactment of the statute on July 1, 1993, and its effective date. The issue arises in the context of a claim for stacking coverages that was based on an accident that occurred after the effective date of the statute. Relying on the effective date provision in Public Acts 1993, No. 93-297 (P.A. 93-297), § 29, which makes § 38a-336 (d) applicable “to acts or omissions occurring on or after January 1, 1994,” the trial court concluded that stacking was prohibited. We disagree.

The plaintiff, Kelly Renz, filed a two count complaint to recover for injuries and losses that she had sustained as a result of an accident that had occurred on February 2, 1994. The accident resulted from the collision of three vehicles, her own vehicle, the uninsured vehicle of another motorist and a state police cruiser operated by a state trooper. In her first count, the plaintiff sought to recover from the defendant Allstate Insurance Company (Allstate) the uninsured motorist benefits provided under an automobile insurance policy that had been issued to her on August 21,1993, and the uninsured motorist benefits provided under another automobile insurance policy that had been issued to her parents on September 23,1993. In her second count, she sought to recover from the defendant state of Connecticut for the alleged negligence of the state trooper.

The jury returned a verdict in favor of the plaintiff, awarding her $150,000 in damages against Allstate only. The merits of that verdict are not before us.

The only issue on which the parties continue to disagree is the extent of the plaintiffs insurance coverage after January 1,1994, when § 38a-336 (d) became effective. By agreement of the parties, that issue was decided by the court after it accepted the jury verdict.

Without any further evidentiary hearings, the court held that, pursuant to § 38a-336 (d), the plaintiffs recovery would be limited to $50,000. The court concluded that the reference in P.A. 93-297, § 29, to “acts or omissions” unambiguously encompassed an event such as an accident. In its analysis, therefore, the court focused on the date of the accident rather than on antecedent events occurring in the gap period. Having concluded that the statutory phrase was unambiguous, the court did not inquire into the statute’s legislative history. It further concluded, on the basis of Amica Mutual Ins. Co. v. Woods, 48 Conn. App. 690, 711 A.2d 1208, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998), that there was no constitutional impediment to applying the statute in this case. In the present case, the court held that even if the statutory mandate had retroactive aspects, the antistacking provision was enforceable because the plaintiffs 1993 contractual right to stacking had not vested prior to the accident in 1994. The plaintiff has appealed.

Whether the court properly applied § 38a-336 (d) under the undisputed circumstances of this case is a question of law that calls for plenary review. See Turner v. Frowein, 253 Conn. 312, 337, 752 A.2d 955 (2000); Babcock v. Bridgeport Hospital, 251 Conn. 790, 819, 742 A.2d 322 (1999). Neither party has argued to the contraiy.

The plaintiff makes two arguments in support of her contention that the court improperly construed § 38a-336 (d) so as to limit her recovery, without stacking, to $50,000. First, she maintains that, as a matter of constitutional law, the court’s construction and application of the statute result in an unconstitutional impairment of her contractual right to enforce the provisions of the Allstate policies issued in 1993. In this argument, she takes the position that the legislature lacked the power retroactively to abrogate allegedly vested rights that arose out of the issuance of the policies and the payment of premiums during the gap period. Second, as a matter of statutory law, she maintains that, in the absence of statutory language in § 38a-336 (d) that unequivocally manifests the legislature’s intent to override stacking provisions contained in gap period policies, the statute should be construed to permit stacking in her case. In this argument, she focuses on the retroactive impact of a statutory change that substantially alters the effect of existing contractual agreements.

In accordance with the well established judicial caution that courts should explore the merits of nonconstitutional arguments before venturing into murky constitutional waters, we consider the plaintiffs latter argument first. See Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 230, 662 A.2d 1179 (1995); State v. Torres, 230 Conn. 372, 382, 645 A.2d 529 (1994). Because we conclude that, properly construed, the statute affords the plaintiff the relief that she seeks, we do not reach the constitutional question that she has posited.

THE FACTS

Even disagreements about statutory meaning are often informed by an understanding of the underlying factual circumstances that illuminate what is at stake. See First Federal Bank, FSB v. Whitney Development Corp., 237 Conn. 679, 689-90, 677 A.2d 1363 (1996); State v. Gerardi, 237 Conn. 348, 360, 677 A.2d 937 (1996); Kaminski v. Fairfield, 216 Conn. 29, 35, 578 A.2d 1048 (1990). The relevant facts in this case are undisputed.

The plaintiff qualified for coverage under the uninsured motorist benefits provision contained in the Allstate automobile insurance policies issued to her and her parents during the gap period between the enactment of § 38a-336 (d) and its effective date. Because the required insurance premiums were paid when the policies were issued, the plaintiff had uninsured motorist coverage for a period of time that extended beyond the date of her accident. Allstate concedes that the plaintiff had such coverage. The disagreement between the parties is about the amount of the coverage.

If the plaintiffs accident had occurred before January 1, 1994, she would, in all likelihood, have been entitled to full recovery for her damages of $150,000 because she would have had the right to stack the uninsured motorist coverages contained in the two Alstate policies. That conclusion is supported by policy language that expressly permitted stacking. The declarations page of the Allstate policy issued to the plaintiff described uninsured and underinsured motorist coverage as “stackable.” The declarations page of the Allstate policy issued to her parents stated that the limits of uninsured motorist coverage “may be combined.” The Allstate policies further expressly prohibited the combining of limits of insurance coverage for all parts of the policy except for Part V, which is the part that defines uninsured motorist coverage. Under these circumstances, as Allstate impliedly concedes, the plaintiffs contractual expectation of a right to stack coverages could not be characterized as unreasonable.

The Allstate policies nowhere alluded to the fact that, within the policy period, the stacking provisions contained therein might be superseded by § 38a-336 (d). Allstate has not argued that the plaintiff had actual notice of the impending statutory change. The plaintiff cannot be charged with constructive notice without a finding to that effect by the trier of fact. See Middlebury v. Steinmann, 189 Conn. 710, 714, 458 A.2d 393 (1983); Mausch v. Hartford, 184 Conn. 467, 469-70, 440 A.2d 157 (1981); Noethe v. Noethe, 18 Conn. App. 589, 596, 559 A.2d 1149 (1989). The record contains no such finding.

It is, however, notable that, unlike the plaintiff, Allstate was an active participant in the discussions leading to the enactment of the antistacking provision in § 38a-336 (d). Allstate representatives testified at a hearing held by the Insurance and Real Estate Committee in 1993 to consider the merits of House Bill No. 5176, the bill that eventually was enacted as P.A. 93-297 and codified in part as § 38a-336 (d). Paul Zigterman, representing Allstate, expressly supported the bill’s provision for the elimination of stacking, which, in his view, was costly coverage that generally was not needed or desired by insured motorists. Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 2, 1993 Sess., p. 491. At the same hearing, William Morgan, an Allstate agent, in his description of existing insurance coverages, stated that “many of the insurance companies have dealt with [stacking] themselves. Several companies now have offered an unstacked policy.” Id., p. 482.

THE LEGAL ISSUE

The plaintiff maintains that, under the present factual circumstances, the court improperly construed § 38a-336 (d) to preclude her access to stacked coverage for the accident that occurred after January 1, 1994, and therefore to limit her recovery to $50,000. She argues that (1) the legislative language, “acts and omissions,” is sufficiently ambiguous to require inquiry into the intent of the legislature and (2) the legislature manifested no intention sub silentio to deny stacking rights to purchasers of paid-up gap policies that expressly confer such a right upon an insured. We agree.

For questions of statutory construction, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Driscoll v. General Nutrition Corp., 252 Conn. 215, 227, 752 A.2d 1069 (2000); Coelho v. ITT Hartford, 251 Conn. 106, 110, 752 A.2d 1063 (1999); Cotto v. United Technologies Corp., 251 Conn. 1, 6, 738 A.2d 623 (1999). If, however, the language of the statute unambiguously directs the outcome of a dispute, that ends the judicial inquiry. Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999); Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999).

We turn first, therefore, to whether the phrase “acts or omissions” contained in P.A. 93-297, § 29, is an unambiguous statutory mandate that precludes access to stacking for any accident occurring after January 1, 1994. Although the court in this case so ruled, the decisions in other trial courts have been split. In two cases, the phrase was held to be ambiguous, and the antistack-ing provision was held inapplicable to gap policies. Wozniak v. Keystone Ins. Co., Superior Court, judicial district of New Haven, Docket No. 376435 (May 14, 1997) (19 Conn. L. Rptr. 423); Patriot General Ins. Co. v. Normandie, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 463778 (May 11, 1995) (14 Conn. L. Rptr. 311), rev’d on other grounds, 41 Conn. App. 66, 674 A.2d 861 (1996). Subsequent to the court’s ruling in the present case, however, another trial court concurred in its conclusion. Del-cegno v. Hartford Casualty Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 355119 (February 28, 2000) (26 Conn. L. Rptr. 652).

In this case, although the court acknowledged the split in trial court decisions, it did not address the merits of the reasoning contained in those cases. Instead, it based its conclusion that the phrase was unambiguous on this court’s holding in Amica Mutual Ins. Co. v. Woods, supra, 48 Conn. App. 690. As the court observed, however, in Arnica we assumed the applicability of the statutory provision there at issue. Because Arnica addressed questions of constitutional authority rather than questions of statutory construction, its holding is not instructive in this case.

We conclude that the reference in P.A. 93-297, § 29, to “acts or omissions” does not unambiguously foreclose the plaintiff from enforcing the terms of gap policies permitting stacking. We disagree with the contrary holding of the court both as a matter of linguistics and as a matter of statutory construction.

With respect to linguistics, we decline to accept the presumed equivalence between “acts or omissions” and “accidents” on which the court apparently relied. Neither the court nor Allstate has cited any authority for such an equivalence. While it is true that compensable accidents often arise out of someone’s “acts or omissions” at the scene, that fact does not resolve the meaning of the phrase. Not all “acts or omissions” arise as a result of an accident suffered by the policyholder. In the context of insurance law, disagreements about the timeliness of an insurance premium payment or of a notice of loss may well constitute “acts or omissions.” Further, a policyholder may be injured in a vehicle collision with an uninsured motorist that results from preexisting mechanical defects or poor tire design. In such an accident, are the relevant “acts or omissions” determined by the date of the collision or by the date of the uninsured motorist’s unreasonable failure to ensure that his or her vehicle could be driven safely? Although these questions may well be resolved easily on their merits, they persuade us that the phrase “acts or omissions” is not an unambiguous reference to automobile accidents.

With respect to statutory construction, we recognize that § 38a-336 (d) does not provide expressly for the continued enforceability of stacking provisions contained in gap insurance policies. Well established principles counsel, however, against applying ambiguous new statutory provisions retroactively if doing so would overturn reasonable expectations. “[W]e consistently have expressed reluctance to construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise.” (Internal quotation marks omitted.) Gil v. Courthouse One, 239 Conn. 676, 686, 687 A.2d 146 (1997); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); see also General Statutes § 55-3.

We conclude, therefore, that the better construction of § 38a-336 (d) is to preclude its applicability to gap policies. This conclusion finds support in the positions taken by knowledgeable Connecticut authorities. In Bulletin PC-20, pt. 1, Conn. Bulletins (September 28, 1993), Robert R. Googins, insurance commissioner, expressed the view of his department with respect to the applicability of § 38a-336 (d). The bulletin states categorically that “policy provisions, coverage and premiums for policies issued with effective dates prior to January 1, 1994 . . . must be adhered to as written.” Id. To the same effect, in J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 1.1, p. 6 n.3, the authors opine that changes brought about by § 38a-336 (d) “would apply only to policies issued or renewed after January 1, 1994.”

The factual record in this case underscores the cogency of the principle of statutory construction that the legislature is presumed not to have intended the retroactive application of substantive changes in the law. As previously noted, Allstate was aware of the fact that substantial changes in the law of stacking were forthcoming. It has not alleged that it took any steps, through its network of insurance agents or otherwise, to assure some kind of disclosure of this fact to the plaintiff or her parents. Even if such disclosure was not mandatory, as a matter of good faith and fair dealing, Allstate has offered no reason for its drafting and issuance of insurance policies in the gap period that contained no warning that statutory changes might limit the enforceability of the coverage for which the policyholders had contracted and paid. We are persuaded that the legislature did not intend § 38a-336 (d) to be applied, under these circumstances, so as to frustrate the plaintiffs reasonable construction of the unequivocal stacking terms in the relevant Allstate policies.

The judgment is reversed and the case is remanded with direction to render judgment awarding the plaintiff $150,000 from the defendant Allstate Insurance Company.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 38a-336, as amended by Public Acts 1993, No. 93-297, § 1 (now § 38a-336 [d]), provides in relevant part: “Regardless of the number of policies issued, vehicles or premiums shown on a policy, premiums paid, persons covered, vehicles involved in an accident, or claims made, in no event shall the limit of liability for uninsured and underinsured motorist coverage applicable to two or more motor vehicles covered under the same or separate policies be added together to determine the limit of liability for such coverage available to an injured person or persons for any one accident. . .

       It is undisputed that the plaintiff was an insured under the Allstate policy issued to her parents.

       Neither party has claimed, in this court, that the trial court improperly denied a request for an opportunity to present additional evidence.

       Her damages fall within the coverage provided by the combined policies of $250,000.

       Although Allstate no longer concedes this point, at trial it told the court that “up until January of 1994, it may very well have been the case that, if the accident had happened four months earlier, the plaintiff would’ve been able to stack the coverages.”

       Allstate has not argued that these provisions are ambiguous.

       Allstate argues that the plaintiff had no right to stacking because she herself did not pay the premium for her parents’ policy. We disagree.
      The Allstate policy issued to the plaintiffs parents provided coverage for "you and any resident relative.” Allstate does not deny that the plaintiff was a “resident relative” at the home of her parents. Allstate cites no authority for the proposition that the reasonableness of the plaintiffs expectation that she was contractually entitled to stacking depends on who paid the premium for an insurance policy that includes her within the class of insureds. Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 437-38, 627 A.2d 1319 (1993), is not to the contrary because it, addresses stacking in the context of requirements of statutory and common law, while this case concerns stacking as a matter of contract law.
      We also disagree with Allstate’s assertion that statements contained on the declarations page of an automobile insurance policy are not to be considered as part of the insurance policy. Our case law is to the contrary. In Kent v. Middlesex Mutual Assurance Co., supra, 226 Conn. 434-36, our Supreme Court considered the contents of a declarations page in determining whether sf acking was permissible. See also Dobuzinsky v. Middlesex Mutual Assurance Co., 49 Conn. App. 398, 408, 714 A.2d 702, cert. denied, 247 Conn. 908, 719 A.2d 902 (1998).

       The parties cited other trial court cases that further prove the division among lower courts on this issue. In Gutierrez v. Metropolitan Property & Casualty Co., Superior Court, judicial district of Hartford, Docket No. 551926 (January 8, 1998) (21 Conn. L. Rptr. 178), the court cited Wozniak and held that the antistacking provision was inapplicable to gap policies. In Krzyczkowski v. Capobianco, Superior Court, judicial district of Litchfield, Docket No. 070963 (February 27 1997), however, although the case did not center around the issue of stacking, the court held that because the accident occurred after January 1, 1994, § 38a-336, as amended by P.A. 93-297, was applicable to such policies.

       The Arnica opinion contains none of the discussion that is normally part of the resolution of an issue of statutory construction. The opinion considers whether the plaintiff therein had vested rights or pending claims, but does not address the possible impact of retroactivity on the reasonable expectations of contracting parties.
      Even if that case can be read, nonetheless, to encompass this issue, the facts of record therein describe a factual scenario that differs from that established in this case. Arnica involved the claim of an insurance company for reimbursement of basic reparations benefits previously paid to or on behalf of its insured. The insurer sought to enforce the provision of a pre-1994 insurance policy that entitled it, by way of subrogation, to reach the proceeds of a settlement between the insured and a third party tortfeasor. The underlying accident, the original payment to the insured and the third party settlement all took place after January 1, 1994, the effective date of the statute prohibiting such subrogation in personal injury or wrongful death actions.
      We are not persuaded that the legislature intended the same resolution of issues concerning retroactivity under the circumstances of this case. In Arnica, it is not clear whether the proceeds of the third party settlement did anything more than to afford the insured therein the possibility of complete recovery for damages not wholly covered by basic reparations payments. In this case, without stacking, the plaintiff will not be made whole.


author: PER CURIAM.

text:
    ANDREW OWENS v. COMMISSIONER OF CORRECTION
    (AC 19687)
    Schaller, Mihalakos and Zarella, Js.
    Submitted on briefs October 18, 2000
    officially released January 9, 2001

      Del Atwell, special public defender, filed a brief for the appellant (petitioner).

      James M. Ralls and Corinne Klatt, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Andrew Owens, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion when it denied his petition for certification to appeal, (2) improperly rejected his claim of ineffective assistance of trial counsel and (3) improperly failed to inquire about a potential conflict of interest, thereby violating his due process rights. We dismiss the appeal.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues differently or that the questions are adequate to deserve encouragement to proceed further. ” Rivera v. Commissioner of Correction, 57 Conn. App. 390, 391, 748 A.2d 368, cert. denied, 253 Conn. 921, 755 A.2d 215 (2000).

The court predicated its dismissal of the petitioner’s petition on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The court evaluated the petitioner’s ineffective assistance of counsel claim by employing the two-pronged test espoused in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test analyzes whether the petitioner has proven that counsel’s performance was deficient, and, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 694. The court found that the petitioner failed to prove that counsel’s representation fell below an objective standard of reasonableness.

The court analyzed the petitioner’s conflict of interest claim according to the test articulated in Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991). The test requires the petitioner to establish “(1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Internal quotation marks omitted.) Id. “[A] court judging a claim of ineffective assistance of counsel must do so on the facts of the particular case, viewed as of the time of counsel’s conduct.” (Internal quotation marks omitted.) Id., 134. The habeas court determined that there was no conflicting interest adversely affecting the petitioner’s interests.

With respect to the alleged violation of the petitioner’s due process rights, the court properly relied on State v. Cruz, 41 Conn. App. 809, 816, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996), for the principle that where neither an actual nor a potential conflict of interest exists, it is unnecessary for the court to inquire further or to obtain a waiver from the defendant. Accordingly, having found no conflict of interest, the court determined that a waiver was not required and that the petitioner’s due process rights were not violated.

After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the court had before it sufficient evidence to find as it did and that it did not abuse its discretion by denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       In his brief, the petitioner asserts: “The trial court’s conclusion that a conflict did not exist did not reheve it of the responsibility to inquire regarding the potential for a conflict .... The inquiry should have involved a colloquy with the petitioner whereby the conflict issue would have been fully explored and perhaps a waiver secured.”


author: DALY, J.

text:
    JOSEPH C. WILSON v. COMMISSIONER OF CORRECTION
    (AC 19987)
    Spear, Zarella and Daly, Js.
    Argued October 30, 2000
    officially released January 9, 2001

      Joseph C. Wilson, pro se, the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

DALY, J.

The petitioner, Joseph C. Wilson, appeals to this court following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion because the respondent, the commissioner of correction, improperly calculated his good time credits under General Statutes § 18-7a (c). We dismiss the appeal.

The facts are undisputed. On February 21, 1991, the petitioner was sentenced to twelve years of imprisonment, suspended after six years, plus probation. On November 28,1995, the trial court revoked the petitioner’s probation and reinstated the remaining six years of imprisonment. The court then sentenced the petitioner to ten years imprisonment on each of three additional charges, suspended after two years, to run concurrently with each other but consecutively to the 1991 sentence.

The judgment of ahabeas court denying apetitioner’s petition for certification to appeal, pursuant to General Statutes § 52-470 (b), can be reviewed only if such denial constituted an abuse of discretion. Rivera v. Commissioner of Correction, 254 Conn. 214, 221, 756 A.2d 1264 (2000); see Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995); Pollitt v. Commissioner of Correction, 60 Conn. App. 743, 745-46, 760 A.2d 1278 (2000). “If the petitioner succeeds in [demonstrating that the habeas court abused its discretion], the petitioner must also demonstrate that the judgment of the habeas court should be reversed on its merits.” (Internal quotation marks omitted.) Pollitt v. Commissioner of Correction, supra, 745-46.

On the basis of our review, we conclude that the petitioner has failed to demonstrate that the habeas court’s denial of his petitions for a writ of habeas corpus and for certification to appeal to this court was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). For that reason, we do not need to reach the issue of whether the habeas court properly determined that the petitioner’s petition for certification, brought pursuant to § 52-470 (b), was frivolous. The dispositive issue on appeal is whether the habeas court abused its discretion. We find that it did not.

The appeal is dismissed.

In this opinion the other judges concurred.

       Thu petitioner had filed an application for a writ of mandamus, which the court and the parties deemed to be a petition for a writ of habeas corpus.

       General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may . . . while serving such sentence by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. . . .”

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       General Statutes § 52-470 (b) is intended to discourage frivolous habeas appeals. Rivera v. Commissioner of Correction, supra, 254 Conn. 221; see Copas v. Commissioner of Correction, supra, 234 Conn. 150. A habeas appeal that satisfies one of the following criteria is not frivolous and warrants appellate review: (1) the issues are debatable among jurists of reason, (2) a court could resolve the issues in a different manner or (3) the questions are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, supra, 498 U.S. 431-32; Rivera v. Commissioner of Correction, supra, 221; Simms v. Warden, supra, 230 Conn. 616.


author: SCHALLER, J.

text:
    GLORIA TRIMEL v. LAWRENCE AND MEMORIAL HOSPITAL REHABILITATION CENTER ET AL.
    (AC 19675)
    Foti, Schaller and Dupont, Js.
    Argued September 15, 2000
    officially released January 16, 2001

      William F. Gallagher, with whom, on the brief, was Thomas J. Airone, for the appellant (plaintiff).

      Michael E. Driscoll, with whom, on the brief, was Jeffrey F. Buebendorf for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Gloria Trimel, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendants, Lawrence and Memorial Hospital Rehabilitation Center (Lawrence and Memorial) and Flanders Health Center (Flanders). On appeal, the plaintiff claims that the court improperly granted the motion because the court incorrectly characterized her claim as sounding in medical malpractice rather than in ordinary negligence. We affirm the judgment of the trial court.

The following facts are relevant to our discussion of this issue. The plaintiff suffers from multiple sclerosis and has been confined to a wheelchair since 1990. The defendants provided the plaintiffs regimen of physical therapy, which she attended on a regular basis starting in 1995. The physical therapy sessions included “transfers” to and from a wheelchair. One method of transfer involved the use of a transfer board, which permitted the plaintiff to move unassisted from the wheelchair to another location. The plaintiff eventually learned to perform transfers without assistance. Although she performed the transfers without assistance, she did so in the presence of a physical therapist. See footnote 4. On October 22, 1995, while attending a physical therapy session at Flanders, which is a satellite clinic of Lawrence and Memorial, the plaintiff attempted to use her transfer board to maneuver from her wheelchair to an exercise mat where the therapy session would begin. During that maneuver, the plaintiff fell from the wheelchair and sustained injuries.

As a result of the incident, the plaintiff filed a two count complaint, alleging that her injuries resulted from the negligence of her therapist, Maryann Mills, and Mills’ employers, Lawrence and Memorial and Flanders. The defendants responded by filing a motion for summary judgment, supported by affidavits of Mills and Lawrence and Memorial Hospital chief operating officer, Cynthia Kane, and the transcript of the deposition testimony of the plaintiff and Mills. The court granted the motion, concluding that the action sounded in medical malpractice and, therefore, required the filing of a certificate of good faith pursuant to General Statutes § 52-190a. The plaintiff now appeals.

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment by characterizing her claim as sounding in medical malpractice rather than ordinary negligence, and thereby requiring a certificate of good faith. She claims specifically that, as a matter of law, a claim for personal injuries resulting from a fall by a person dependent on a wheelchair while transferring from a wheelchair to an exercise mat in a physical therapy facility during a scheduled therapy session involves ordinary negligence, not medical malpractice. We disagree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and 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. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the [movants’] summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 146-47, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999).

The plaintiffs appeal, in essence, seeks to have us draw a line in her favor between ordinary negligence claims, which do not require good faith certificates, and medical malpractice claims, which do require a certificate of good faith pursuant to § 52-190a and typically require expert testimony. See Caron v. Adams, 33 Conn. App. 673, 690, 638 A.2d 1073 (1994). The plaintiff concedes that the defendants are “health care providers” pursuant to General Statutes § 52-184b. The plaintiff also concedes that if this court concludes that her claim was correctly classified as a medical malpractice claim, then the trial court’s order was proper because she did not file a certificate of good faith.

The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. “[Professional negligence or malpractice . . . [is] defined as the j'ailure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.” (Emphasis added; internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). Furthermore, malpractice “presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . .” (Citations omitted; emphasis added.) Camposano v. Claiborn, 2 Conn. Cir. Ct. 135, 136-37, 196 A.2d 129 (1963). From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. See Spatafora v. St. John’s Episcopal Hospital, 209 App. Div. 2d 608, 609, 619 N.Y.S.2d 118 (1994).

The facts of this case reveal that the defendants are medical professionals and that the plaintiff was at their clinic for treatment, specifically her therapy session. Her session was to begin on the exercise mat, which required her to transfer from the wheelchair to the mat. The question is whether allowing the plaintiff to transfer unassisted on the day in question, after she had learned to perform transfers without assistance, involved the exercise of medical judgment. That question is a close one.

It is evident that a transfer by one afflicted with multiple sclerosis requires substantial training through therapy and that performing the maneuver is, in itself, no small matter. Transfers required training and practice through the course of therapy, regardless of whether the health care provider concluded that the plaintiff was proficient enough to perform the transfer without supervision. The plaintiff testified in her deposition: “I asked [Mills] if she wanted me to do [the transfer] without her. I called across the room and she said yes.” Mills testified in her deposition that one of the goals of the therapy at the time the injury occurred was “[w]orking on transfer training.” Mills further testified that “[generally she was independent in doing those transfers. If she came in and she was not having a good day, for whatever reason, whatever her version of not having a good day was, she would let me know that her arms were sore or her legs hurt or something wasn’t feeling right. She would request assistance as she needed it.” Mills also stated that she would determine the mode of transfer to physical therapy equipment by “her statement as [the plaintiff] comes in, how—usually you greet the patient, you ask them how they’re doing, what type of day they had. She would indicate to me whether or not she had a good night or not so good night, whether she felt like she needed a lot of assistance that particular morning getting up with her aide coming to the house or if she generally felt weak.”

Notwithstanding evidence adduced that the plaintiff performed transfers on her own at times, in the course of therapy sessions, Mils routinely made assessments of the plaintiffs physical capabilities in performing transfers. Training the plaintiff to perform transfers was a stated goal of therapy. The plaintiffs claim, therefore, is properly characterized as a medical malpractice claim.

The plaintiff further argues that her claim may be characterized as a negligent supervision claim rather than a medical malpractice claim because expert testimony is not required to establish the negligence of the defendants. Medical malpractice claims do not necessarily require expert testimony. Although a court requires expert testimony to establish the relevant standard of care in most cases; see Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995); “[s]ome aspects of a medical malpractice action are considered to be within the realm of a jury’s knowledge”; Caron v. Adams, supra, 33 Conn. App. 690; and, thus, do not require expert testimony. The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.

The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment. That rule is illustrated by review of the major cases, specifically Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969), and Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App. 383, 386, 505 A.2d 741 (1986), offered by the parties in support of their positions.

In Levett, the plaintiffs decedent claimed negligence by a physician when the decedent fell in the physician’s dressing room during a scheduled visit. The decedent was elderly and infirm and, although the physician suggested that his nurse assist the decedent, he never ordered the nurse to do so. The physician knew that the decedent tended to lose her balance when her eyes were closed, but he did not believe that the risk would be significant when she disrobed. The decision by a medical professional to allow a patient to engage in a routine activity, dressing and undressing, in which there is a potential risk of injury, i.e. losing balance andfalling, and involving some assessment of the patient’s condition at the time involves the exercise of a medical judgment. Levett v. Etkind, supra, 158 Conn. 573. The mere characterization of an activity as routine does not exclude that activity from the realm of medical judgment. Thus, the fact that a transfer may be considered routine is not dispositive.

After reviewing the facts, our Supreme Court in Levett concluded that “[t]he plaintiff alleged in her complaint and offered proof that the decedent was in the defendant’s office as a patient of the defendant. This was admitted by the defendant in his answer and was included in his claims of proof. There can be no doubt therefore that the relationship of physician and patient existed. The defendant had been the decedent’s family physician since 1944. The determination whether the decedent needed help in disrobing and, in the event she should refuse such help, what course of conduct to pursue called for a medical judgment on the part of the physician predicated on his knowledge of her physical and mental condition on that day. The duty of the defendant in his capacity as a physician was to exercise reasonable care, skill and diligence in treating the plaintiff as a patient.” Id.

By way of comparison, Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn. App. 383, involved a negligence claim relative to a plaintiffs decedent. The decedent had been hospitalized at the defendant’s facility, a psychiatric institute, which offered inpatient and outpatient care, and treatment. The decedent had entered the inpatient facility where he remained until his discharge four weeks later. Upon his discharge from the inpatient facility, the outpatient facility accepted the decedent as a patient. The outpatients, as part of their therapy and treatment, were encouraged to eat lunch at the inpatient facility. The inpatient and outpatient facilities were situated on either side of a state highway. The day following his discharge, the decedent visited the outpatient facility for treatment and, when he crossed the highway to go to lunch, a car struck and killed him. Id., 385.

The court in Badrigian noted that “[t]he defendant is attempting to transform this case from one of simple negligence into that of medical malpractice requiring expert medical testimony to prove a medical standard of care and a breach thereof.” Id., 386. Under the facts of Badrigian, “[t]he [trial] court correctly decided that this was not a medical malpractice action, but an action sounding in ordinary negligence . . . .” Id. The Badrig-ian decision revolved around the propriety of submitting to a jury a claim against a hospital without expert testimony and the failure to charge the jury on elements of a medical malpractice claim. The Badrigian court, however, stated that “one need not be guided by medical experts in determining whether a mentally ill person should be allowed to cross on foot a heavily traveled four lane state highway without supervision”; id., 387; thus alluding to the proper identification of the claim as one of ordinary negligence, not medical malpractice.

The distinction between the negligence claim in Lev-ett and the negligence claim in Badrigian is predicated on the relation of the alleged negligent act or omission to the treatment. In Levett, the plaintiff was in the physician’s office for purposes of a scheduled visit. Her claim for injuries that resulted from a fall while disrobing in the office, after her physician had made a medical judgment that she could disrobe safely, was substantially related to her medical treatment and, therefore, properly was a claim of medical malpractice. In contrast, the decedent in Badrigian was on his lunch break from his scheduled treatment. The mere fact that the treatment facility encouraged the patient to eat at its facility, which was designed in such a way as to require patients to cross a major highway, did not make meals a part of the treatment and thereby transform the claim into one sounding in medical malpractice. The facility in Badrigian owed a duty to any customer to provide a safe facility, not just to patients, and in failing to do so the plaintiff properly asserted a claim of ordinary negligence. The alleged negligence, therefore, was not substantially related to the medical services provided by the facility and, accordingly, the court properly classified the plaintiffs claim as involving ordinary negligence.

We conclude, considering Badrigian and Levett and the definition of medical malpractice, that the plaintiffs claim is one of medical malpractice rather than ordinary negligence. It cannot be said that a medical professional’s decision not to supervise a maneuver that was learned through the course of therapy, when the health care provider is familiar with the strengths and weaknesses of the individual patient, is any less a medical judgment than the decision to supervise a patient with known physical deficiencies in the course of a routine as common to everyday existence as dressing and undressing.

The plaintiff was in the defendants’ facility for treatment, the plaintiffs treatment had included unassisted transfers with supervision, and the plaintiffs injury resulted from a mishap during a transfer without supervision. It was a medical professional’s judgment that allowed the transfer to proceed unassisted. Those considerations lead to the conclusion that the plaintiffs claim against medical professionals with whom she had a medical professional-patient relationship involved a negligent act or omission during an activity that was substantially related to her treatment. As such, she was required to file a certificate of good faith pursuant to § 52-190a and failed to do so. The court’s granting of the defendants’ motion for summary judgment therefore was proper as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-190a (a) provides: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that, there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.”

       General Statutes § 52-184b (a) defines “health care provider” as “any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment,.”

       Although we uphold the court’s granting of the defendant’s motion for summary judgment, we note that the failure to file a certificate of good faith when bringing a medical malpractice claim ordinarily is a curable defect. See LeConche v. Elligers, 215 Conn. 701, 711, 579 A.2d 1 (1990).

       Referring to her therapy session with Nancy Bucko, her therapist prior to Mills, the plaintiff testified in her deposition as follows:
      “Q. When you say that you would do transfers, is that your—when you’re saying you do a transfer, you mean you yourself are transferring from your chair to the mat?
      “A. Initially she was helping me.
      “Q. Nancy Bucko?
      “A. Nancy Bucko.
      “Q. Yes.
      “A. And showing me how exactly it needed to be done and I was able to become proficient at doing it but she was always standing right in front of me or next to me so if anything adverse would occur, there would be help at hand.
      “Q. Okay. I take it you were able with Nancy Bucko most times to transfer yourself without assistance.
      “A. In the beginning, no. As we went into later, more or less, yes.
      “Q. But there came a point where you could?
      “A. Where I could?
      ”Q. Transfer unassisted?
      “A. Yes, but there was always someone there so I felt confident in doing it.”