author: SCHALLER, J.

text:
    KAREN TRACY v. ALLSTATE INSURANCE COMPANY

    (AC 21535)
    Lavery, C. J, and Schaller and Flynn, Js.
    Argued March 21
    officially released July 2, 2002

      Guy L. DePaul, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (defendant).

       A motion for reconsideration was granted on September 11, 2002. This opinion has been superseded by Tracy v. Allstate Ins. Co., 76 Conn. App. 329, 819 A.2d 859 (2003), only as to the issue of whether the tolling provision of General Statutes § 38a-336(g) (1) apply to the insurance policy in question.

   Opinion

SCHALLER, J.

The plaintiff, Karen Tracy, appeals from the summary judgment rendered by the trial court in favor of the defendant, Allstate Insurance Company, in her action against the defendant for underinsured motorist benefits. The sole issue on appeal is whether the court improperly granted the defendant’s motion for summary judgment because it determined that her action was barred by the contractual limitation provision contained in the automobile insurance policy issued to her by the defendant. We affirm the judgment of the trial court.

The following pertinent facts and procedural history are undisputed. On February 20, 1996, the plaintiff, while driving her own vehicle, was injured in a motor-vehicle accident caused by the negligence of another driver (tortfeasor). At the time of the accident, she was insured under an automobile insurance policy issued by the defendant. The plaintiff brought an action against the tortfeasor and, on August 24, 1999, settled that action for $20,000, thereby exhausting the liability limits of the tortfeasor’s insurance policy. On July 2, 1999, the plaintiff gave written notice to the defendant that she intended to pursue an underinsured motorist claim on the policy. On February, 29, 2000, the plaintiff commenced an action against the defendant, seeking benefits for damages in excess of the tortfeasor’s policy limits pursuant to the underinsured motorist provisions of her policy. The defendant filed an answer and special defenses in which it asserted, inter alia, that the plaintiffs cause of action was barred by the three year limitation period contained in the policy that it had issued to her. On July 24, 2000, the defendant filed a motion for summary judgment. The court granted the motion and rendered judgment in the defendant’s favor, and this appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion for summary judgment. Specifically, the plaintiff argues that the limitation provision contained in the defendant’s contract of insuranee with her is ineffective because it conflicts with another provision in the contract. The plaintiff asserts that in this situation, because the contract limitation period does not apply, the standard six year limitation period set forth in General Statutes § 52-576 controls. She therefore argues that summary judgment was improper because under § 52-576, she has until 2005 to take action against the defendant. We are not persuaded.

At the outset, we note our well settled standard of review for a challenge to a trial court’s rendering of a summary judgment. “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 in relevant part 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 [defendant] 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.” (Internal quotation marks omitted.) Soares v. George A. Tomasso Construction Corp., 66 Conn. App. 466, 468-69, 784 A.2d 1041 (2001).

We further note the insurance policy provisions in question. The defendant’s policy with the plaintiff states, under the heading “Legal Actions,” that “[a]ny legal action against [the defendant] must be brought within three years from the date of the accident” (limitation provision). The preceding sentence under the heading “Legal Actions” states that “[n]o one may sue us under this coverage unless there is full compliance with all policy terms” (compliance provision). The plaintiff argues that those provisions are inconsistent and irreconcilable when read together because she was not able to comply with two other provisions in the contract within three years, and, as a result, was prohibited from bringing a legal action within that limitation period.

The first policy term with which the plaintiff argues she could not comply states: “If the accident arises from the use of an underinsured motor vehicle, we aren’t obligated to make any payment under this coverage until the limits of liability for all liability protection in effect and applicable at the time of the accident have been exhausted by payment of judgments or settlements.” The plaintiff asserts that according to that provision and the compliance provision, she could not file an action until the limits of liability of the tortfeasor’s protection had been exhausted. The plaintiff notes that the exhaustion of liability in this case did not occur within three years because the tortfeasor’s insurer did not make a settlement offer within that time period. She argues that because of that, the compliance provision and the limitation provision are inconsistent and made it impossible for her to bring a legal action within three years.

The second policy term with which the plaintiff argues she could not comply states that the defendant “will not pay any damages an insured person is legally entitled to recover . . . when a settlement has been made without our written consent.” The plaintiff asserts that according to that provision and the compliance provision, she could not file an action until she obtained the defendant’s consent to the settlement. The plaintiff again notes, as stated previously, that in her case, the tortfeasor’s insurer did not make its settlement offer within three years of the date of the accident. She therefore argues, as she does relative to the first policy provision with which she claims she could not comply, that because the tortfeasor’s insurer did not make its settlement offer within three years of the date of the accident, the compliance provision and the limitation provision are irreconcilable, and those provisions made it impossible for her to bring a legal action within the three year period.

We address each of those provisions in turn and conclude that the court, relying on Coelho v. ITT Hartford, 251 Conn. 106, 752 A.2d 1063 (1999), correctly granted the defendant’s motion for summary judgment. In Coelho, our Supreme Court discussed General Statutes § 38a-336 (b) while determining when the limitations period begins to run under § 52-576. The Coelho court stated that § 38a-336 (b) “requires that the insured first liquidate a claim against a tortfeasor before recovering underinsured motorist compensation” and that “exhaustion of the liability limits of the tortfeasor’s policy is a necessary precondition to the recovery of underinsured motorist benefits . . . .” (Internal quotation marks omitted.) Coelho v. ITT Hartford, supra, 112.

Coelho also stated that it is well settled law that “a claim for underinsured motorist benefits can be initiated in advance of exhaustion.” Id. The court stated that “in both [McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 139, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 149-50, 617 A.2d 451 (1992), it] held that the parties were free to adopt an unambiguous contract provision governing the award of benefits and that the plaintiffs’ failure to comply with the terms therein barred recovery. ... In so holding, the court tacitly recognized that the concept of accrual under a particular statute differs from the right to initiate recovery proceedings under a particular policy provision. Although [General Statutes] § 38-175c, the statutory precursor to § 38a-336 (b), prevented the plaintiffs from recovering benefits prior to exhaustion, nothing prevented the plaintiffs from initiating recoveiy proceedings within the contractually prescribed period.” (Citations omitted.) Coelho v. ITT Hartford, supra, 251 Conn. 113-14.

In the present case, the court correctly applied that law and stated in its memorandum of decision that “[t]he plaintiffs contention that the policy term requiring exhaustion of the tortfeasor’s liability coverage prohibits an insured from filing suit until after exhaustion of the tortfeasor’s liability coverage is not in accord with Connecticut law.” (Emphasis in original.) Quoting Coelho, the court concluded that “the plaintiff, by agreeing to a three year time limitation that ran from the date of the accident, has ‘agreed to initiate recovery proceedings within that period, subject to a stay of enforcement until tortfeasor liability could be exhausted. By the same token, the insurers essentially committed to defend against a claim that had yet to accrue.’ [Id., 114].”

We conclude, as the trial court did, that because the policy provision regarding exhaustion of the tortfeasor’s liability protection did not prohibit the plaintiff from filing her action within three years, the limitation provision and the compliance provision are not incompatible or inconsistent.

We also apply, as the trial court did, that same reasoning to the plaintiffs second contention regarding the policy provision requiring the defendant’s consent to a settlement. We do so because obtaining that consent is nothing more than part of the process of exhausting the tortfeasor’s liability protection. Specifically, the consent provision allows the insurer to ensure that the settlement offered by the tortfeasor’s insurance provider does, in fact, exhaust the limits of the tortfeasor’s coverage.

We therefore conclude, as the trial court did, that the reasoning in Coelho applies to this part of the plaintiffs claim as well. In the court’s words from its memorandum of decision: “Although this policy term prevents the insured from recovering benefits when a settlement has been made without the defendant’s written consent, it in no way prevents that person from initiating recovery proceedings against the defendant within the contractually prescribed period.” Thus, because the policy’s consent provision did not prohibit the plaintiff from filing her action within three years from the date of the accident, the limitation provision and the compliance provision are not incompatible or inconsistent.

On the basis of the foregoing, we conclude that the plaintiffs assertion that the policy limitation is ineffective and that § 52-576 is the controlling statute of limitations must fail because the limitation provision and the compliance provision in the insurance policy are not inconsistent. With all the policy provisions in force, the plaintiff was required to file her underinsured motorist action against the defendant within three years from the date of the accident. It is undisputed that the plaintiff failed to do so. The plaintiffs action therefore is barred unless she somehow tolled the three year provision in the policy.

We conclude, however, as the trial court did, that the plaintiff cannot avail herself of the tolling provision in § 38a-336 (g) (1) because that subdivision does not apply to the policy in question. As the trial court correctly stated, Coelho informs us that § 38a-336 (g) (1) is applicable only to insurance policies with limitations periods of less than three years from the date of the accident. In Coelho, our Supreme Court stated that § 38a-336 (g) (1) “permits an insurance carrier, upon compliance with certain tolling provisions, to limit the period for filing a claim to less than three years from the date of accident .... Under that section, tolling is required whenever the claimant, prior to the expiration of the applicable time period, gives written notice to the insurer of a pending claim and commences suit within 180 days of exhaustion. . . . The [tolling provisions of § 38a-366 (g)] expressly apply to those contracts that limit the time for commencing a recovery proceeding to a period of less than three years from the date of accident .... [Subdivision (g)] goes on to enumerate the circumstances under which the applicable limitations period will be tolled. The phrase any applicable limitation period, as used in [subdivision (g)] therefore, refers to those express contractual provisions that limit the commencement of recovery proceedings to a period of less than three years from the date of accident .... [Section 38a-366 (g)] does not contemplate tolling of any limitations period that might otherwise be applicable.” (Citations omitted; internal quotation marks omitted.) Id., 115-16.

In the present case, the defendant’s policy with the plaintiff states that an action “must be brought within three years from the date of the accident.” (Emphasis added.) We do not construe the term “less than,” as discussed in Coelho, as the equivalent of “within.” Given the plain understanding of the term “less than,” it is clear that this term, when used in the phrase, “less than three years,” encompasses an amount of time that does not equal three full years. Indeed, it is some quantity of time that is “less than” three years. Thus, § 38a-336 (g) (1) applies only to insurance policies that limit the period for filing a claim to “less than three years from the date of accident . . . .” Conversely, the term “within,” when used in the phrase, “within three years from the date of the accident,” encompasses each and every day of the three years. See Lamberti v. Stamford, 131 Conn. 396, 398, 40 A.2d 190 (1944); First Federal Savings & Loan Assn, of Rochester v. Pellechia, 37 Conn. App. 423, 426-27, 656 A.2d 688 (1995), cert. granted on other grounds, 234 Conn. 905, 659 A.2d 1206 (appeal withdrawn February 5,1996). Therefore, § 38a-336 (g) (1) does not apply to the defendant’s policy with the plaintiff because the three year- period that the policy provides for is greater, if only by as little as one day, than the period stated in the statute.

Because it is undisputed that the plaintiff failed to file her underinsured motorist action against the defendant within three years from the date of the accident, as she was required to do, and because the tolling provisions of § 38a-336 (g) (1) do not apply to the defendant’s policy with her, we conclude that the plaintiffs action is barred. We further conclude that the court’s decision to grant the defendant’s motion for summary judgment was legally and logically correct and supported by the facts set out in the memorandum of decision.

The judgment is affirmed.

In this opinion the other judges concurred.

       That provision of the policy relates to General Statutes § 38a-336 (b), which provides in relevant part: “An insurance company shall be obligated to make .payment, to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. . . .”

       Although the issue on appeal in Coelho concerned when the limitations period begins to run under § 52-576, we conclude that the law in Coelho regarding § 38a-336 (b) is applicable to the present appeal and that it was relied on correctly by the trial court. We note specifically, however, that our reliance on Coelho in no way indicates that we agree with the plaintiffs argument that § 52-576 applies in this case. As we determine in this opinion, § 52-576 is not the controlling statute of limitations in this case.

       General Statutes § 38a-336 (g) (1) provides: “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.”


source: Caselaw Access Project

license: Public Domain

text:
    DOROTHY GRECO v. RALPH GRECO
    (AC 22135)
    Schaller, Dranginis and Hennessy, Js.
    Submitted on briefs February 28
    officially released July 2, 2002

      William H. Cashman filed a brief for the appellant (defendant).

      George W. Booth, Jr., filed a brief for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Ralph Greco, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Dorothy Greco. On appeal, the defendant claims that the court (1) improperly found facts and (2) abused its discretion in distributing the marital assets. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. After thirty-seven years of marriage, the plaintiff brought a dissolution of marriage action against the defendant on August 4, 2000. During the trial, the defendant admitted to having had an affair that began in 1999. The plaintiff testified that she was willing to reconcile with the defendant after the affair, but as a condition of reconciliation, she would require him to transfer all the family assets into her name alone. After hearing the parties, the court found that the marriage had broken down because of the defendant’s infidelity. The court distributed 67 percent of the marital assets to the plaintiff and 33 percent of the assets to the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found facts. Specifically, the defendant argues that the court improperly found that his infidelity caused the breakdown of the marriage and that his loss of self-esteem also led to the breakdown of the marriage.

We first note our standard of review for the defendant’s claim. “We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Mongillo v. Mongillo, 69 Conn. App. 472, 476, 794 A.2d 1054 (2002).

The defendant first argues that the court improperly found that his affair had caused the breakdown of the marriage. According to the defendant, the marriage broke down as a result of his refusal to accept the plaintiffs terms of reconciliation requiring him to transfer all the marital assets to her. He argues that it was improper for the court to find otherwise because it was the plaintiffs demands and refusal to negotiate that caused the marriage to break down.

The court’s memorandum of decision reveals that the court set forth both parties’ contentions as to why the marriage broke down. The court noted the plaintiffs contention that, among other things, the marriage broke down because of the defendant’s repeated infidelity. The court also noted the defendant’s position that the cause of the breakdown was the plaintiffs alcohol use, lack of communication, dictatorial personality, unwillingness to go on vacations and loss of a close friend. The court concluded that “[w]hile there are two sides to every marriage breakdown and perceptions always vary, it would appear the [plaintiffs] claims are more credible.”

We are not persuaded that the court’s finding was erroneous. In the present case, the court chose to credit the plaintiffs testimony as to why the marriage broke down over that of the defendant. It is a well settled proposition that the court is entitled to accept or reject, in whole or in part, the testimony of a party before it. See Hunter’s Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 111, 798 A.2d 991 (2002). In light of the uncontested fact that the defendant had engaged in an extramarital affair, we cannot conclude that it was improper for the court to find that this infidelity caused the breakdown of the marriage. Because the court’s finding was supported by ample evidence in the record, that finding was not clearly erroneous.

Additionally, we are not persuaded by the defendant’s argument that the terms of reconciliation were the cause of the breakdown. We note that the court’s memorandum does not list the reconciliation terms as one of the defendant’s arguments as to why the marriage broke down. It would therefore appear that the defendant did not even argue that contention at the dissolution hearing. Moreover, as the plaintiff correctly states in her brief, the demand to transfer assets and the defendant’s refusal to do so was an impediment to reconciliation, not a contributing factor to the breakdown. Logic dictates that the terms of reconciliation, and indeed the reconciliation itself, were necessitated by the defendant’s initial infidelity. The defendant’s argument seeks to assign the breakdown of the marriage to a failed remedy as opposed to the actual underlying cause for which the remedy proved insufficient. We cannot agree with that contention.

The defendant also asserts that it was improper for the court to find that his loss of self-esteem also led to the breakdown of the marriage. The defendant contends that one phrase contained in the court’s opening remarks in the memorandum of decision constitutes a finding that the defendant’s loss of self-esteem caused the breakdown. We will not address that contention because the court’s statement that the defendant takes issue with was not a finding of fact. A review of the memorandum makes it clear that the remark in question was nothing more than the court’s setting of the stage for its determination of the issue presented.

II

The defendant next claims that the court abused its discretion in distributing the marital assets. The defendant argues that the court did not have a sufficient basis to distribute the assets as it did.

We first note our standard of review. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Our statutory scheme, specifically [General Statutes] §§ 46b-81 and 46b-82, set[s] forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action. The court must consider all of these criteria. ... It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding as to each statutory factor. A ritualistic rendition of each and every statutory element would serve no useful purpose. . . . [T]he trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

The court did not abuse its discretion in awarding the plaintiff 67 percent of the assets. Despite the defendant’s contentions to the contrary and his own review of the criteria set forth in § 46b-81, we cannot construe the court’s award as an abuse of discretion in light of the court’s finding that the defendant’s infidelity was the cause of the breakdown of the marriage. That is a factor that the court was required to consider pursuant to § 46b-81. “It is often the case that the appellant, in arguing abuse of discretion, would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. . . . Such an excursion by this court into the domain of the trier is unacceptable.” (Citation omitted; internal quotation marks omitted.) Id., 176. We determine that the court reasonably could have concluded as it did. As a result, the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant argues that instead of reviewing that claim based on the 33 percent of the assets he received, we should exclude a $100,000 mortgage on the marital home that he was assigned and review the award as if he received only 25 percent of the assets. The defendant argues that we should exclude the mortgage because there is a very low probability that he will receive payment on the mortgage during his lifetime as a result of the conditions of payment implemented by the court. Despite that argument, the defendant has provided no authority to support the exclusion of that asset from our review. Additionally, we note that if we were to exclude that asset and then review the distribution, we would essentially be redetermining the allocation of assets. We cannot assume that role. We therefore decline to exclude the asset, and we review the distribution as it stands.


author: BISHOP, J.

text:
    LINDA OBERLANDER v. JAMES F. SULLIVAN ET AL.
    (AC 21619)
    Mihalakos, Bishop and Daly, Js.
    Argued March 22
    officially released July 9, 2002

      Ronald D. Williams, Jr., for the appellant (named defendant).

      Margaret J. Slez, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant James F. Sullivan, in his official capacity as commissioner of transportation (commissioner), appeals following the trial court’s denial of his motion to dismiss the present action for lack of subject matter jurisdiction. The sole issue on appeal is whether the court properly concluded that the plaintiff, Linda Oberlander, had provided adequate notice of her injuries and their cause to the commissioner, as required by General Statutes § 13a-144.

The following procedural history is relevant to our resolution of the commissioner’s appeal. On November 17, 1997, the commissioner received a letter from the plaintiff in which she contended that a defect in a roadway had caused her to fall and suffer injuries. The letter stated in relevant part: “Date & time of occurrence: September 16, 1997, approximately 8:10 a.m.

“Location of occurrence: At the intersection of McLaren Road and Mansfield Avenue in Darien, Connecticut, approximately 14 feet from the designated cross walk on Mansfield Avenue. (See enclosed diagram)

“Injuries sustained: At this time, Ms. Oberlander suffers from sprain/strain to her left hip, left knee, back and buttocks.

“Cause of injuries: Improperly maintained and deteriorated pavement around water company pipe ‘cap.’ ”

The diagram depicted a crosswalk on Mansfield Avenue and its location relative to McLaren Road. According to the diagram, McLaren Road ran perpendicular to Mansfield Avenue, intersected it and ended at that point, forming a “T” intersection. A water pipe cover was depicted fourteen feet south of the crosswalk and ten feet to the west of the curb opposite McLaren Road on Mansfield Avenue.

On October 5, 1999, the plaintiff commenced an action against the commissioner, the American Water Company and the American Waterworks Service Company. In count one of her complaint, which concerns the commissioner, the plaintiff alleges in relevant part: “4. At all times hereinafter mentioned the intersection of McLaren Road and Mansfield Avenue, in Darien Connecticut was a public highway included in the state highway system.

“5. On 9/16/97 at about 8:10 AM the plaintiff was the school crossing guard at said intersection, when, as she was backing away from the crossing, while keeping [an] eye on her charges, she stepped on [an] American Waterworks Service Company pipe ‘cap’ which was loose as a result of improperly maintained and deteriorated pavement, and lying in the roadway causing her to fall all of which caused the plaintiff to sustain and suffer the severe personal injuries and losses hereinafter set forth.”

On October 6, 2000, the plaintiff and Gary Pavia, a lieutenant in the Darien police department, were deposed. The plaintiff testified as follows. On the first day of school of the 1997-98 academic year, she noticed that a water pipe cover consisting of two or more pieces had come loose from a water valve located on Mansfield Avenue near the crosswalk. One piece, a “cylinder,” was on the side of the street near the curb, and another piece, a “cap,” was in one of the travel lanes. The plaintiff moved the cap to the side of the street. Approximately two weeks later, on September 16, 1997, the plaintiff tripped over the cap after helping some schoolchildren cross Mansfield Avenue.

Pavia testified as follows. He was dispatched to the scene following a report that a person had fallen and suffered injuries. At the scene, the plaintiff informed him that she had “tripped over the cap from the valve that was approximately two inches from the curb.” He observed the cap, which was near the curb, and asked the plaintiff if she had moved it since tripping over it. She informed him that she had not. He then photographed the scene.

On October 31,2000, the commissioner filed a motion to dismiss count one of the complaint. In his motion, the commissioner argued that the plaintiff had not provided adequate notice of her injuries and their cause to the commissioner as required by § 13a-144 and, therefore, count one was barred by the doctrine of sovereign immunity. Consequently, the commissioner argued, the court was required to dismiss count one because the court did not have subject matter jurisdiction. Excerpts of the two depositions as well as xerographic copies of two photographs of the scene were included with the motion.

On January 25, 2001, the court denied the motion to dismiss, concluding that “the description in the plaintiffs notice of claim was sufficiently detailed to provide the [commissioner] with enough information to investigate the plaintiffs claim.” On February 13, 2001, the commissioner, pursuant to the rule of Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (en banc), appealed from the denial of his motion.

We now set forth the legal principles that guide our analysis. “It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases . . . .” (Citation omitted; internal quotation marks omitted.) Bresnan v. Frankel, 224 Conn. 23, 25-26, 615 A.2d 1040 (1992). The state, through § 13a-144, has waived its sovereign immunity in civil suits in which relief is sought for an injury allegedly caused by a defective highway, provided the commissioner of transportation had a duty to keep the highway at issue in repair. See footnote 3; see also Bresnan v. Frankel, supra, 26. The notice required under § 13a-144 is a condition precedent to the cause of action, however, and if that requirement is not met, no cause of action exists. Warkentin v. Burns, 223 Conn. 14, 17-18, 610 A.2d 1287 (1992). “The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] . . . to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made.” (Emphasis in original; internal quotation marks omitted.) Fussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994).

“The notice need not be expressed with the fullness and exactness of a pleading. . . . Under § 13a-144, the notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently.” (Citation omitted; internal quotation marks omitted.) Id., 356-57. “Unless a notice, in describing the place or cause of an injury, patently meets or fails to meet this test, the question of its adequacy is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” (Emphasis added; internal quotation marks omitted.) Id., 354.

“[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 258 Conn. 680, 683, 784 A.2d 347 (2001). We acknowledge that “[a] determination regarding a trial court’s subject matter jurisdiction is a question of law”; (internal quotation marks omitted) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999); and, accordingly, our review is plenary. Id. Additionally, we note that “[i]t is well established that [i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Id., 410-11. We follow that rule in assessing the allegations of the complaint for the purpose of relating them to the claims initially set forth in the notice.

On appeal, the commissioner argues that a review of the notice, count one of the complaint and the exhibits discloses that the plaintiff failed to satisfy the notice requirement of § 13a-144. In support of his argument, the commissioner contends that the plaintiff misidentified (1) the location of the alleged fall and (2) the defect that allegedly had caused the plaintiff to suffer injuries. Regarding the former, the commissioner emphasizes that the diagram enclosed with the letter of notice indicates that the plaintiff tripped ten feet west of the curb whereas the exhibits indicate strongly that the plaintiff actually tripped only two inches west of it. Regarding the latter, the commissioner emphasizes that the letter of notice states that the cause of the plaintiffs injuries was the “[improperly maintained and deteriorated pavement around water company pipe ‘cap’ ” whereas the complaint alleges and the exhibits indicate strongly that the defect that ultimately caused her to trip was the presence of the loose cap near the curb. Thus, according to the commissioner, the plaintiff did not notify him of the immediate cause of her injuries. For those reasons, the commissioner maintains that the plaintiff failed to provide notice sufficient to enable him to gather information about the case intelligently.

We are not persuaded by the arguments advanced by the commissioner. We agree with the commissioner that the location of the alleged trip and fall was not accurately specified in the diagram enclosed with the letter of notice. Exhibits consisting of deposition testimony indicate that the location of the plaintiffs alleged fall was approximately thirteen feet, ten inches, to the west of the location shown on the diagram attached to the notice. Under the circumstances of the present case, however, that discrepancy is not fatal to the adequacy of the notice because the plaintiff has consistently claimed that the alleged highway defect was “improperly maintained and deteriorated pavement,” and the description of the location of the alleged defective pavement has not changed from the original notice provided to the defendant. In her complaint, the plaintiff alleges that “she stepped on [an] American Waterworks Service Company pipe ‘cap’ which was loose as a result of improperly maintained and deteriorated pavement, and lying in the roadway causing her to fall . . . .” Because the plaintiff, both in her letter of notice and in her complaint, alleges that the highway defect that caused her injuries was the condition of the pavement, the precise location of the cap that she allegedly tripped over is not an indispensable element of the notice required by § 13a-144. Whether the plaintiff can satisfy her burden of proof that the allegedly defective condition of pavement several feet from the location of her fall was its proximate cause and that the presence of the cap merely was a condition proximately caused by the allegedly defective condition are questions of fact for the jury’s determination.

On the basis of the foregoing reasons, we conclude that the plaintiff did not patently fail to provide the commissioner notice sufficient to enable him to gather information about the case intelligently.

The denial of the motion to dismiss is affirmed.

In this opinion the other judges concurred.

       Although the American Water Company and the American Waterworks Service Company also were named as defendants, they are not parties to this appeal, as the motion to dismiss was brought only by the commissioner and involved only the first count of the plaintiffs complaint.

       The town of Darien intervened as a plaintiff and filed a complaint seeking reimbursement for certain workers’ compensation payments it has paid or may become obligated to pay to the plaintiff. Because the town of Darien is not a party to this appeal, we refer in this opinion to Linda Oberlander as the plaintiff.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought . . . unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .”

       During her deposition, the plaintiff testified that she had noticed that “[t]he cap was out of the hole.”

       Hereinafter, those attachments will be referred to collectively as “the exhibits.”

       In Shay v. Rossi, supra, 253 Conn. 167, our Supreme Court held that “in a civil case the denial of a motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, must be regarded ... as an immediately appealable final judgment.”

       “Our Supreme Court has defined a highway defect as [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” (Internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 601, 691 A.2d 594 (1997), quoting Hall v. Burns, 213 Conn. 446, 461-62, 569 A.2d 10 (1990).


text:
    CADLE COMPANY v. GARY R. GINSBERG
    (AC 21130)
    Foti, Bishop and Shea, Js.

      Argued April 1
    officially released July 9, 2002

      Paul N. Gilmore, with whom, on the brief, was Barbara A. Frederick, for the appellant (substitute plaintiff).

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellee (defendant).
   Opinion

BISHOP, J.

In this collection action to enforce a negotiable promissory note, the substitute plaintiff, CadleRock Joint Venture, L.P., appeals from the judgment of the trial court rendered in favor of the defendant, Gary R. Ginsberg. The plaintiff claims that the court improperly (1) denied its motions to direct a verdict in its favor, to set aside the verdict for the defendant and to render judgment for the plaintiff notwithstanding the verdict, (2) charged the jury regarding the plaintiffs burden of proof on its status as a holder in due course, (3) submitted the construction of certain documents to the jury as a question of fact and (4) restricted the plaintiffs cross-examination of a defense witness. Because we conclude that the court improperly denied the plaintiffs motion for a directed verdict, we reverse the judgment of the trial court.

The following facts were found by the court in Cadle Co. v. Ginsburg, 51 Conn. App. 392, 721 A.2d 1246 (1998) , cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999) , a related action brought by the Cadle Company against Robert A. Ginsburg, the defendant’s nephew. “In the late 1980s, [Robert Ginsburg and Gary Ginsberg were shareholders] of Delco Development Company, Inc. (Delco), a real estate development company that was adversely affected by the collapse of the state’s real estate market. See Mechanics & Farmers Savings Bank, FSB v. Delco Development Co., 232 Conn. 594, 656 A.2d 1034, cert. denied, 516 U.S. 930, 116 S. Ct. 335, 133 L. Ed. 2d 235 (1995).

“On September 14, 1988, Delco borrowed $2 million from Great Country Bank (Great Country) and executed a promissory note in that amount payable to Great Country. On the same date, three Delco shareholders, [Robert Ginsburg], Gary Ginsberg and Dennis Nicotra, signed agreements of guarantee and suretyship.

“In April, 1991, Great Country filed an action against [Robert Ginsburg] and Gary Ginsberg. The complaint alleged that Delco had defaulted on its note and sought monetary damages against the defendants. Nicotra was not named as a defendant in the action. On July 24, 1991, Nicotra executed a satisfaction agreement with a number of creditors, including Great Country. Delco was not a patty to that agreement, in which Nicotra promised to transfer a number of his assets, including his Delco stock, to the creditors. In return, the creditors released Nicotra from various obligations. Great Country specifically released Nicotra ‘from any further liability as a guarantor’ [on the Delco debt] and agreed, with certain limitations, to indemnify him with respect to any claim for contribution by other guarantors.

“On the same day, July 24,1991, the creditors who had settled with Nicotra, including Great Country, signed an intercreditor agreement to divide the assets obtained in the settlement. Neither Delco nor Nicotra were parties to that agreement. Settlement negotiations between opposing counsel in the action by Great Countiy against [Robert Ginsburg] and Gary Ginsberg commenced in the fall of 1991. Great Country had not informed [Robert Ginsburg] or Gary Ginsberg of its agreement with Nicotra. [Robert Ginsburg and Gary Ginsberg] ultimately agreed to settle the case by executing [promissory notes] ....

“On October 11, 1991, [Robert Ginsburg and Gary Ginsberg each] executed a promissory note in the amount of $100,000, payable to Great Country. ... In return for the . . . $100,000 note[s] . . . Great Country filed a withdrawal of its action.” Cadle Co. v. Ginsburg, supra, 51 Conn. App. 393-94.

The defendant learned about the settlement and the terms of the satisfaction agreement several months after he executed the promissory note. Thereafter, he made no payments on the note. Great Country transferred the note to Cadle Company on April 6,1994. The note was part of a pool of approximately 106 loans that Cadle Company purchased from Great Country.

Cadle Company filed the present action to enforce the note in 1995. The defendant conceded that he had made no payments on the note, but asserted the special defenses of accord and satisfaction, breach of the implied covenant of good faith and fair dealing, and fraudulent misrepresentation, all related to Great Country’s settlement with Nicotra. Cadle Company denied the special defenses, and asserted in avoidance its rights as a holder in due course and release. The note was thereafter assigned to the plaintiff. See footnote 1.

In March, 2000, the case was tried to a jury. At the close of the evidence, the plaintiff filed amotion seeking a directed verdict in its favor. After the court denied the motion, the parties agreed to stipulate that the plaintiff had made a prima facie case that it was a holder of the note, and that the defendant had not paid the note according to its terms. The court then submitted the case to the jury. The jury found in favor of the plaintiff in its case-in-chief, as it was directed to do by order of the court pursuant to the parties’ stipulation, found in favor of the defendant on all three special defenses, and found against the plaintiff on the matters raised in avoidance of the special defenses. The jury returned a verdict in favor of the defendant. The court denied the plaintiffs motions to set aside the verdict and for judgment notwithstanding the verdict. This appeal followed.

I

The plaintiff claims that there was no evidentiary basis for findings in the defendant’s favor on his three special defenses. The plaintiff, therefore, claims that the court improperly denied its motion for a directed verdict, and its subsequent motions to set aside the verdict and for judgment notwithstanding the verdict. We agree.

“The standard of review applied to directed verdicts is clear. A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion. ... In reviewing the trial court’s decision to [reject the plaintiffs motion for a directed verdict in its favor] we must consider the evidence in the light most favorable to the [defendant]. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. . . . The standard of review governing a motion for judgment notwithstanding the verdict is the same because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001).

Each of the defendant’s three special defenses was based on the claim that Great Country’s settlement with Nicotra had fully satisfied the Delco debt. The first special defense alleged that Nicotra had satisfied the entire Delco debt with the transfer of his assets pursuant to the satisfaction agreement, thus discharging the defendant from his liability as a guarantor. The second special defense alleged that Great Country had violated the covenant of good faith and fair dealing by inducing the defendant to execute the $100,000 promissory note in settlement of the Delco debt without first disclosing that it had settled the debt with Nicotra. The third special defense alleged that Great Country had fraudulently induced the defendant to execute the $100,000 promissory note after settling the debt with Nicotra.

At trial, a number of documents relating to the special defenses were admitted into evidence, including the Delco note, the defendant’s guarantee of the Delco note, the satisfaction agreement, the intercreditor agreement and the $100,000 promissory note executed by the defendant. The documentary evidence showed that the satisfaction and intercreditor agreements involved fifteen creditors in addition to Great Country. Pursuant to the satisfaction agreement, Nicotra transferred most of his assets, consisting primarily of real property, to the creditors holding first priority mortgages. Nicotra’s guarantor liability on the Delco debt, however, was an unsecured obligation. The satisfaction agreement addressed the unsecured creditors by transferring some of Nicotra’s assets, which were substantially encumbered, to a lead bank for the benefit of all of the creditors. The agreement included a provision acknowledging that the transferred assets would be dealt with in a separate document known as the inter-creditor agreement. Great Country received no direct remuneration from Nicotra in exchange for his release as a guarantor of the Delco note. Instead, each of the unsecured creditors obtained participation rights in a so-called creditors pool comprised of the transferred assets.

According to schedule 1.1 of the satisfaction agreement, Nicotra’s entire debt obligation to Great Country at the time the agreement was signed was $2,222,472.18 on the Delco note, a subordinate mortgage of $434,031.64 on a separate property and an unsecured loan of $274,683.99, for a total obligation of $2,931,187.81. Section ten of the intercreditor agreement indicated that Nicotra’s unsecured debt to the lenders was $22,888,500.11 and that Nicotra’s $2.9 million total obligation to Great Country constituted 12.81 percent of that amount. The intercreditor agreement thus granted Great Countiy, as a participating unsecured creditor, a 12.81 percent participation right in any of the proceeds that might be realized from liquidation of the assets in the creditors’ pool.

The overall purpose of the satisfaction agreement was “to provide for the satisfaction, restructuring, modification and compromise of such obligations . . . upon the terms and conditions contained [in] this Agreement.” Section 3.02 (c) of the agreement provided, with respect to the $2 million Delco debt, that compliance with the agreement’s terms constituted “good and adequate consideration for the release of Borrower [Nicotra] from any further liability as a guarantor of the obligations secured by said second mortgage, and hereby releases Borrower from any further liability therefor, and agrees to indemnify and hold Borrower harmless from any and all liability with respect to any claim for a right of contribution by any of the other Guarantors of or obligors of said obligations . . . .”

Section 4.01 of the agreement stated that “[e]xcept as otherwise provided . . . nothing contained herein shall be deemed a limitation on the rights of any Lender against any other party liable for any of the obligations.”

Section 6.17 of the satisfaction agreement referred to the intercreditor agreement, and stated that “[t]he Borrower . . . understand^] and acknowledge[s] that the Lenders have entered into an Intercreditor Agreement of even date herewith providing for, among other things, the division and distribution of amounts available for payment of the Obligations. The Borrower . . . consentís] to such Intercreditor Agreement, including, without limitation, all payments and transfers among the Lenders thereunder and any and all future modifications and amendments thereof . . . .” (Emphasis added.)

Section 14 of the intercreditor agreement addressed how the release of Nicotra might affect the other Delco guarantors. It stated: “In reaching this Intercreditor Agreement, the indebtedness of Delco Development Coiporation to [Mechanics & Farmers Savings Bank, FSB, holder of the first mortgage on the Delco property] and Great Country, which was guarantied by the Borrower and by Robert A. Ginsburg and Gary R. Ginsberg (the ‘Ginsbergs’), was treated as debt of the Borrower for the purposes of this Agreement. [Mechanics & Farmers Savings Bank, FSB] and Great Country have agreed actively to pursue recovery of such indebtedness by taking all reasonable or necessary actions pursuant to the Ginsbergs’ guaranties (which may include the commencement of legal proceedings) and by paying all costs arising therefrom until such time as they shall determine in their reasonable business judgment after due investigation that further such action is not justified. ...”

The defendant’s guarantee of the Delco debt also was entered into evidence. Paragraph eight of that agreement provided: “The liability of the Undersigned [Gary Ginsberg] hereunder is direct, absolute and unconditional, without regard to the liability of any other person. The Bank shall have the right to proceed against the Undersigned [Gary Ginsberg] immediately upon any default by the Principal [Delco Development Company, Inc.] and shall not be required to take any action or proceeding of any kind against the Principal or any other party liable for the indebtedness or any collateral or security which the Bank may have before proceeding against the Undersigned hereunder. The Undersigned shall have no right of subrogation, reimbursement, or indemnity whatsoever or any right or recourse to the collateral for the indebtedness of the Principal to the Bank, unless and until all of the indebtedness have been paid in full.”

Paragraph ten of the guarantee agreement further provided: “Each of the Undersigned expressly agrees that its obligations and liabilities hereunder shall in no way be released, lessened, or impaired by reason of the release of, or the unenforceability of this Agreement against, any one or more of the others of the Undersigned or by the release of, or unenforceability of any Agreement or undertaking against any other guarantor or other party liable, whether primarily or secondarily, for the repayment of the indebtedness.”

At trial, several witnesses testified as to whether the intent or effect of Nicotra’s settlement with Great Country was to satisfy the entire Delco debt. The defendant was the only witness to testify that, after he read the satisfaction agreement, he interpreted it to mean that Nicotra had settled the entire debt and that no additional payments by the other guarantors would be required. He did not point, however, to any factual basis for that conclusion. He also conceded that the effect of § 3.02 (c) of the agreement was to release only Nicotra from his obligation on the debt and that the language of the agreement put the other guarantors “on notice” of a potential action against them.

Edward Rosenblatt was involved in negotiating the satisfaction and intercreditor agreements as legal counsel for Great Country. He testified that the agreements were intended to be read together and that their purpose was to maximize the creditors’ recovery on Nicotra’s debts. In that regard, he pointed to the “affirmative obligation” of Great Country, under § 14 of the inter-creditor agreement, actively to pursue the other guarantors of the Delco debt.

Thomas Lenahan, who also participated in the negotiations, was vice president of Great Country when the agreements were drafted. He testified that the defendant’s guarantee of the Delco note expressly permitted the bank to pursue all of the guarantors and that the bank had been motivated to do so to maximize its recovery. Robert Hirtle, Nicotra’s attorney, explained that one of his chief concerns when negotiating the agreement had been to protect Nicotra from actions for contribution by the other guarantors. Nicotra testified that he had been motivated to negotiate the satisfaction agreement by a desire to protect his own financial interests.

Substantial testimony was elicited as to how much money, if any, Great Country received, or was expected to receive, pursuant to the settlement. None of the witnesses, including the defendant, Nicotra, Rosenblatt, Lenahan and Hirtle, had any personal knowledge as to what happened to the transferred assets after the agreements were signed. Accordingly, none could say whether any of the assets had been liquidated. All gave considerable testimony, however, regarding their expectations as to the creditors’ potential recovery from the asset pool.

Although Nicotra acknowledged that the satisfaction agreement showed that his liabilities exceeded the value of his transferred assets by more than $22 million, he nonetheless testified that he always had perceived the value of the transferred properties to be in excess of his liabilities because the properties were “good from an earnings standpoint,” despite the weak real estate market at the time. Nicotra did not refer to any specific facts to support that conclusion. Rosenblatt, on the other hand, testified that Great Country believed Nicotra’s assets were insufficient to satisfy his liabilities. As a result, the bank believed that the most equitable solution for all concerned was to participate in an agreement with Nicotra’s other creditors. Rosenblatt stated that he did not think that the bank expected the entire debt obligation to be satisfied, and that he personally believed that the bank would be “very lucky” to receive any funds at all from the asset pool.

Lenahan testified that he was responsible for obtaining up-to-date appraisals of Nicotra’s properties and had concluded that the value of the transferred assets was such that there would be a shortfall of some magnitude when compared to Nicotra’s liabilities. He explained that the only additional sources of recovery on the Delco note were the other two guarantors and that the bank had hired Rosenblatt to bring an action against the defendant because it had not yet recovered any payments on the note. In fact, when Lenahan left the bank for another position one year after the agreement was signed, Great Country still had not recovered any proceeds from the transferred assets.

Hirtle testified as to Nicotra’s cash flow problems with the properties, all of which were located in Connecticut, except a resort property in the Caribbean. Hirtle explained that a cash flow approach was used to value the properties. This required a determination of how much debt could be supported by the net operating income each property generated. Hirtle stated that he did not trust appraisals because property values were rapidly falling at the time and banks in the state were failing. He believed that the cash flow approach had a “more solid accounting basis” and would provide a more accurate assessment of the properties’ true value. He also testified that there were a few “premium” properties for which buyers might pay more and a few that might yield less than indicated by the cash flow analysis. Hirtle identified the Caribbean resort and several properties in the “General Electric portfolio” as premium properties.

Hirtle further testified that six months before the intercreditor agreement was signed, a potential buyer had offered $18 million for the Caribbean resort. The buyer wanted the resort free and clear of Nicotra’s unsecured debt on the property, which was significant, and demanded an assumption of the first mortgage. When Nicotra was unable to liquidate his unsecured debt and the Bank of Nova Scotia, holder of the first mortgage, refused to accede to the buyer’s demand, the deal fell through. Hirtle testified that the first mortgage on the Caribbean property was approximately $4 million to $4.5 million, and that its sale might have yielded $14 million in proceeds for the creditors’ pool. Thereafter, the Gulf War intervened as the lenders were preparing to sell the property, and, because of drastically reduced tourism, the season was a financial disaster. As a result, the lenders did not, or could not, put up the working capital needed to keep the resort financially afloat, and the Bank of Nova Scotia foreclosed approximately six months after the satisfaction agreement was signed. At the same time, cash flow dropped on the General Electric properties in Connecticut because of falling rental income, and General Electric foreclosed on those properties. Hirtle testified that to his knowledge, the only funds that went into the creditors’ pool were derived from Nicotra’s classic car collection, which he estimated was worth approximately $400,000.

Because the special defenses required the jury to interpret the provisions of several agreements, we must be guided not only by the standard of review applied to directed verdicts, but also by principles of contract law. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Short v. Connecticut Bank & Trust Co., 60 Conn. App. 362, 367, 759 A.2d 129 (2000). Accordingly, our task is to determine whether the terms of the relevant documents, together with the testimonial evidence as to the circumstances surrounding their negotiation, provided a sufficient evidentiary basis for the jury to have found in favor of the defendant on any of the three special defenses.

A

In his first special defense, accord and satisfaction, the defendant alleged that Nicotra had settled the entire Delco debt for good and valuable consideration, thus discharging the defendant of his liability as a guarantor. We conclude that the evidence was insufficient to support a jury finding in favor of the defendant on that ground.

“When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. ... An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. . . . Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract is supported by consideration. ” (Citations omitted; internal quotation marks omitted.) B & B Bail Bonds Agency of Connecticut, Inc. v. Bailey, 256 Conn. 209, 212, 770 A.2d 960 (2001).

Considering the evidence in the light most favorable to the defendant, as we are required to do, we conclude that the jmy reasonably and legally could not have found in favor of the defendant on the first special defense. First, the language of the relevant agreements provides no basis for a finding that they constituted a full and final settlement of the Delco debt. The defendant conceded as much when he agreed with the plaintiffs counsel that § 3.02 (c) of the satisfaction agreement provided only for a release of Nicotra from future liability on the debt. The defendant also conceded that by indemnifying and holding Nicotra harmless with respect to potential claims for a right of contribution by the other guarantors, the agreement put the other guarantors on notice of a potential action against them. Moreover, § 4.01 of the satisfaction agreement specifically provided that nothing contained in the agreement should be deemed a limitation on the rights of any lender against parties liable for the obligations described therein. In addition, the effect of § 6.17 of the agreement was to incorporate the provisions of the intercreditor agreement, which expressly anticipated that Great Country would pursue the other guarantors of the Delco debt. Finally, all of the foregoing provisions were consistent with the defendant’s guarantee of the Delco note. That agreement described the defendant’s liability on the note as direct, absolute and unconditional, without regard to the liability of any other person, and not subject to release by reason of the release of or unenforceability of the note against any other guarantor.

Second, there was no testimonial evidence from those who negotiated and drafted the satisfaction and intercreditor agreements that the agreements were intended to effect a full and final settlement of the Delco debt. Rosenblatt testified that the purpose of the agreements was to maximize the recovery on Nicotra’s debts. Rosenblatt specifically pointed to the provision in the intercreditor agreement regarding Great Country’s pursuit of the other guarantors of the Delco note. Lenahan also testified that the bank had expected to pursue the other guarantors, and Nicotra testified that his primary concern when negotiating the settlement was to protect his own financial interests.

Third, the agreements indicated that there was insufficient value in the transferred properties to satisfy the Delco debt because Nicotra’s liabilities exceeded his assets by $22 million. Although Nicotra testified that he believed the value of the transferred properties exceeded his liabilities, he pointed to no specific facts to support his opinion, which was therefore of no probative value. He also acknowledged that the agreements showed the existence of a significant shortfall. Moreover, witnesses who participated in negotiating and drafting the agreements testified that Great Country did not expect a full recovery on Nicotra’s debts.

In addition, although the satisfaction agreement contained numerous schedules describing Nicotra’s financial status and his outstanding debt, the agreement did not indicate that any equity remained in the transferred properties. Furthermore, neither of the witnesses who testified as to the valuation procedures used when negotiating the agreements provided specific information regarding his analysis. Lenahan testified that he was responsible for obtaining up-to-date appraisals on the properties, but he offered no detailed evidence regarding his findings. Hirtle testified that a cash flow analysis had been conducted, which he believed, in view of the deteriorating real estate market and the number of failing banks in Connecticut, was a “more solid” approach to determining value, but he likewise provided no specific information regarding his findings.

Finally, there was no evidence that the effect of the satisfaction and intercreditor agreements was to extinguish the Delco debt. There was no evidence that Great Country received remuneration from Nicotra at the time the agreements were signed or at any time thereafter in partial payment of the debt. Each and every witness, including the defendant, also testified that he had no knowledge of what happened to the transferred assets after the agreements were signed. Accordingly, the record contains no evidence that the creditors received proceeds from any of the liquidated assets or that any transferred assets were even liquidated. In fact, Lenahan specifically testified that as of one year later, the bank had received no proceeds from the creditors’ pool pursuant to the agreements.

The defendant nonetheless claims that sufficient evidence existed for the jury to make a reasonable and legal finding in his favor on the first special defense. The defendant relies on Nicotra’s testimony that he believed that there was adequate value in the transferred assets to fully settle his debts, Hirtle’s testimony that a potential buyer made an offer of $18 million on the Caribbean property and Hirtle’s testimony that Nicotra’s classic car collection, which was assigned to the creditor’s pool, was valued at $400,000. None of that testimony, however, even when considered in the light most favorable to the defendant, provides a sufficient evidentiary basis to support the defendant’s claim.

As previously stated, Nicotra’s testimony was not supported by the facts. When queried as to how he could maintain a belief that his properties had sufficient value to settle his debts in the face of clear evidence that his liabilities exceeded his assets by more than $22 million, Nicotra responded that he perceived the properties as being “good from an earnings standpoint,” despite the weak real estate market at the time. In contrast, Nicotra’s attorney testified that on the basis of a cash flow analysis that considered the net operating income generated by the properties, he had concluded that Nicotra’s assets were insufficient to cover his liabilities.

Hirtle’s testimony on the Caribbean property also fails to provide a sufficient evidentiary basis for a finding in the defendant’s favor. Hirtle testified that the first mortgage on the property was approximately $4 million to $4.5 million, and that the sale of the property might have yielded $14 million in proceeds for the creditors’ pool. In fact, the satisfaction agreement indicates that the first mortgage held by the Bank of Nova Scotia was approximately $2 million, the amount of total debt on the property was more than $8 million and Nicotra’s own estimate of the property’s value was $12.4 million, not $18 million. Nonetheless, even if Hirtle’s testimony had been correct, and if the sale had occurred and the proceeds had been realized as predicted, Great Country’s 12.81 percent share of those proceeds, or $1,792,000, would have been insufficient to satisfy the outstanding balance on the Delco debt at the time the agreements were signed. Furthermore, for the jurors to have relied on Hirtle’s testimony would have required them to ignore compelling evidence that the offer never ripened into an agreement, in part because the Bank of Nova Scotia would not consent to the buyer’s demand that he be permitted to assume the mortgage, an event completely out of Nicotra’s or the creditors’ control. In addition, had any other buyer offered $18 million for the Caribbean property, a sale would have yielded only $9,448,000 in net proceeds, not $14 million, after satisfying the property’s total existing debt obligation of $8,552,000. Great Country’s 12.81 percent share of that amount would have been $1,210,288, far short of what was needed to satisfy the Delco debt.

As for the classic car collection, although Hirtle testified that the collection was worth $400,000, schedule 201 (a) of the satisfaction agreement lists the value of the collection at only $228,000. Assuming, however, that the cars were sold and net proceeds of $400,000 were realized, Great Country’s 12.81 percent share would have amounted to only $52,000. Assuming further, that the $52,000 had been applied exclusively to the Delco debt, and not to Nicotra’s other unsecured obligations to Great Country of approximately $700,000, the combined proceeds realized by Great Country from the sale of the cars and the Caribbean property would not have been sufficient to satisfy the debt. As a result, even under the most favorable interpretation of the limited evidence on which the defendant relies, there was no basis for a finding that Nicotra’s agreement with Great Country settled the entire Delco debt.

Finally, any potential conclusion by the jury that the sale of the Connecticut properties might have yielded significant proceeds would have been highly speculative and, therefore, unwarranted. Testimony indicated that property values in the state were falling rapidly and that Connecticut banks were failing at the time the agreement was signed. Moreover, there was no evidence as to how much, if any, equity remained in those properties. Indeed, evidence that Nicotra’s liabilities exceeded his assets by more than $22 million suggests that no equity remained, which is why the banks determined that a settlement agreement would constitute the best possible solution to Nicotra’s financial difficulties.

Accordingly, there was no evidentiary basis for a finding that the satisfaction agreement represented an accord and satisfaction of the Great Country debt, and we conclude that the court improperly denied the plaintiffs motion for a directed verdict on the first special defense.

B

The defendant alleged in his second special defense, breach of the implied covenant of good faith and fair dealing, that Great Country improperly induced him to sign the $100,000 promissory note after failing to disclose that it had settled the Delco debt with Nicotra for good and valuable consideration. We conclude that there was no evidentiary basis on which to support a jury finding in favor of the defendant.

“The common-law duty of good faith and fair dealing implicit in every contract requires that neither party [will] do anything that will injure the right of the other to receive the benefits of the agreement. . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended.” (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 665, 778 A.2d 237 (2001). “Bad faith means more than mere negligence; it involves a dishonest purpose.” Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992). “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” (Internal quotation marks omitted.) Id.

We conclude that the evidence was insufficient to support a finding in the defendant’s favor on the second special defense. The defense was premised on the assumption that Great Country had settled the entire Delco debt with Nicotra. As discussed in part I A of this opinion, however, there was no factual basis to support such a finding. Consequently, the defendant’s claim that Great Country improperly induced him to sign the $100,000 promissory note after failing to disclose that Nicotra had settled the entire debt is completely lacking in substance. Accordingly, we conclude that the court improperly denied the plaintiffs motion for a directed verdict on the second special defense.

C

The defendant alleged in his third special defense, fraudulent misrepresentation, that Great Country fraudulently obtained the $100,000 note from the defendant after receiving payment in full from the Nicotra settlement. We conclude that there is no evidentiary basis on which to make a finding for the defendant on that defense.

“The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn. App. 349, 358, 783 A.2d 28 (2001).

The underlying premise of the third special defense was that Great Country had settled the entire Delco debt when it entered into the satisfaction agreement with Nicotra. As stated in part I A, however, there was no factual basis on which the jury could have made such a finding. We therefore conclude that the court improperly denied the plaintiffs motion for a directed verdict on the third special defense and remand the case to the trial court for a hearing in damages.

II

The defendant claims that the court improperly denied his motion to disqualify the plaintiffs counsel pursuant to rule 1.9 of the Rules of Professional Conduct. He therefore requests that in the event of a new trial, that the plaintiffs counsel be disqualified because he previously represented the defendant in another matter and had access to confidential information relating to the defendant’s finances. The defendant claims that this information had a material and adverse effect on his present case because it affected the ability of the plaintiff to know whether to file for a prejudgment remedy and allowed the plaintiff to plan a collection strategy in the event of success at trial. We consider the claim in the context of the remand for a hearing in damages and conclude that it has no merit.

In 1996, the plaintiffs counsel represented the defendant’s law firm in a malpractice action and had access to information regarding the law firm’s finances. That case settled in 1997. In 1999, counsel for the defendant in the malpractice action became the plaintiffs counsel in the present case. Prior to jury selection, the defendant filed a motion seeking to disqualify the plaintiffs counsel because financial information previously had been divulged to counsel regarding the defendant’s law firm.

The defendant and his law firm partner testified that at the time of the malpractice action, they participated in a general discussion with the plaintiffs counsel of the law firm’s financial structure and ownership interests, but they could not recall if there had been any specific discussion of the firm’s financial records. They also could not recall whether the information discussed was such that specific inferences could be made about the firm’s income, receipts and expenses.

The court denied the motion on the ground that there was insufficient evidence that the malpractice case and the present case were substantially related and that disclosures in the prior case as to the defendant’s personal financial circumstances were likely to be used to the defendant’s disadvantage in the present action. The court noted that the defendant and his partner were unable to state what information was transmitted that reasonably could be considered confidential. The court also observed that the defendant had not established that rule 1.9 applied in the present circumstances.

“The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court. . . . We accord wide discretion to a trial court’s ruling on a motion for disqualification of counsel for conflict of interest. ... In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court’s decision.” (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 724-25, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

We conclude that court did not abuse its discretion in denying the defendant’s motion absent specific evidence as to the financial information disclosed in the malpractice case and its likely effect on the present trial. We also conclude that there is no basis for disqualifying the plaintiffs counsel on remand for the very limited purpose of a hearing in damages.

The judgment is reversed and the case is remanded with direction to grant the plaintiffs motion for a directed verdict and thereafter to conduct a hearing in damages.

In this opinion the other judges concurred.

       CadleRock Joint Venture, L.P., the substitute plaintiff in this action, was assigned the note by Cadle Company, the original plaintiff. We refer in this opinion to CadleRock Joint Venture, L.P., as the plaintiff.

       Because both cases arose from the same set of circumstances, the facts found in Cadle Co. v. Ginsburg, supra, 51 Conn. App. 392, reasonably could have been found by the jury in the present action.

       Gary R. Ginsberg and Robert A. Ginsburg, although related, spell their last names differently.

       Delco borrowed the $2 million to pay Mechanics & Farmers Savings Bank, FSB, the accrued interest on a first mortgage secured by real property in Hamden.

       The operative complaint is the amended complaint dated August 12,1999.

       The defendant also alleged two other defenses that were not submitted to the jury.

       Note six to schedule 201 (a) of the satisfaction agreement indicates that at the time the agreement was signed, the first mortgage was $2 million and the total debt on the property was $8,552,000, of which Nicotra personally had guaranteed $8,042,000. The schedule also indicates that Nicotra had estimated the value of the Caribbean property at $12.4 million, rather than $18 million.

       Schedule 201 (a) of the satisfaction agreement lists avalué for the classic car collection of $228,000.

       The first special defense alleged as follows: “Prior to the entering into the Note relationship between the parties to this action, defendant and coobligors ROBERT GINSBURG and DENNIS NICOTRA were indebted to GREAT COUNTRY BANK in the amount of $2,000,000.00. GREAT COUNTRY BANK, without disclosing to defendant and ROBERT GINSBURG settled said debt obligation for good and valuable consideration. GREAT COUNTRY BANK thereafter induced defendant and ROBERT GINSBURG to enter in a settlement as memorialized by the execution of NOTES. The plaintiff knew or should have known of said prior facts during the course of review and due [diligent] investigation of the loan file prior to purchasing same. The plaintiff assumes all liabilities of the prior holder in due course of said debt instrument GREAT COUNTRY BANK. The alleged debt was paid in full by DENNIS NICOTRA to the favor [of] GREAT COUNTRY BANK and consequently there has been an Accord and satisfaction of the debt . . . .”

       The cash flow analysis was the only potential evidence on the issue of earnings, but it was not entered into evidence by either party.

       The defense is designated as the fourth special defense in the defendant’s pleadings. The defendant alleged: “Prior to the entering into the Note relationship between the parties to this action, defendant and co-obligors ROBERT GINSBURG and DENNIS NICOTRA were indebted to GREAT COUNTRY BANK in the amount of $2,000,000.00. GREAT COUNTRY BANK, without disclosing to defendant and ROBERT GINSBURG settled said debt obligation for good and valuable consideration. GREAT COUNTRY BANK thereafter induced defendant and ROBERT GINSBURG to enter into a settlement as memorialized by the execution of NOTES. The plaintiff knew or should have known of said prior facts during the course of review and due [diligent] investigation of the loan file prior to purchasing same. The plaintiff assumes all liabilities of the prior holder in due course of said debt instrument GREAT COUNTRY BANK. GREAT COUNTRY BANK failed to engage in good faith and fair dealing with defendant during the creation of the debt relationship between the parties . . . .”

       The defense is designated as the second special defense in the defendant’s pleadings, and alleged: “Prior to the entering into the Note relationship between the parties to this action, defendant and co-obligors ROBERT GINSBURG and DENNIS NICOTRA were indebted to GREAT COUNTRY BANK in the amount of $2,000,000.00. GREAT COUNTRY BANK, without disclosing to defendant and ROBERT GINSBURG settled said debt obligation for good and valuable consideral ion. GREAT COUNTRY BANK thereafter induced defendant and ROBERT GINSBURG to enter in a settlement as memorialized by the execution of NOTES. The plaintiff knew or should have known of said prior facts during the course of review and due [diligent] investigation of the loan file prior to purchasing same. The plaintiff assumes all liabilities of the prior holder in due course of said debt instrument GREAT COUNTRY BANK. At the time the parties entered into the Note, GREAT COUNTRY BANK Intentionally and willfully omitted material facts as are more particularly described above in order to induce the defendant to enter into said Note. If GREAT COUNTRY BANK had disclosed the settlement made with DENNIS NICOTRA, the defendant would not have and did not need to enter into said Note . . .

       Rule 1.9 of the Rules of Professional Conduct provides: “Conflict of Interest: Former Client
      “A lawyer who has formerly represented a client in a matter shall not thereafter:
      “(1) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
      “(2) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”