author: DiPENTTMA, C. J.

text:
    DAVID JOHNSON v. DANIEL J. PIKE ET AL.
    (AC 32695)
    DiPentima, C. J., and Gruendel and West, Js.
    Argued February 1
    officially released June 12, 2012

      John H. Hanks, for the appellants (defendants).

      Wayne A. Francis, for the appellee (plaintiff).
   Opinion

DiPENTTMA, C. J.

This appeal arises from the trial court’s denial of motions for remittitur and to set aside the verdict filed by the defendants, Daniel J. Pike and Andrew C. Pike. Because the court did not abuse its discretion in concluding that the jury’s award did not “shock the conscience” and is “well within the limits of a reasonable award,” we affirm the judgment. The defendants also claim that the court improperly admitted certain documents into evidence. We reject this claim as well.

The plaintiff, David Johnson, brought this action seeking damages for injuries he suffered in a December 3, 2006 automobile accident involving a vehicle owned by Daniel J. Pike and driven by Andrew C. Pike. The defendants admitted liability, and the case proceeded to a jury trial on the issue of damages. After finding in favor of the plaintiff, the jury awarded $34,222 in lost wages, $1762 in medical bills, no future medical expenses and $60,000 in noneconomic damages. The verdict totaled $85,984.

Following the verdict, the defendants filed a motion for a remittitur and a motion to set aside the verdict and for a new trial. Specifically, the defendants argued that the awards for lost wages and noneconomic damages be reduced to “a fair, just and reasonable amount . . . .” They also claimed that the court improperly admitted into evidence certain exhibits that were hearsay, self-serving and without foundation. The court denied the defendants’ motions and stated: “The award of $60,000 does not shock the conscience and is well within the limits of a reasonable award given the plaintiffs testimony concerning the ongoing pain and suffering he has endured as a result of the accident.” This appeal followed. Additional facts will be set forth as necessary.

I

The defendants first claim that the court improperly denied their motions for remittitur and to set aside the verdict and for a new trial. Specifically, they argue that the award of $50,000 in noneconomic damages was excessive. We are not persuaded.

General Statutes § 52-216a provides in relevant part: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon the failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.” See Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 754-55, 800 A.2d 499 (2002) (plaintiff faced with order of remittitur may either accept remittitur or new trial); see also Practice Book § 16-35. A remittitur impacts the “delicate balance between two of the most basic principles of our law: the constitutional right of litigants to have the jury determine the amount of damages awarded; and the trial court’s broad authority to supervise the trial process.” Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 277, 32 A.3d 318 (2011).

Our Supreme Court recently set forth the standards for both the trial court and a reviewing appellate court with respect to a motion for remittitur. “In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. . . . Upon completing that review, the court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. . . . The court’s broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court’s explicit and unchallenged instructions. . . .

“Furthermore, [t]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of § 52-216a\ rests solely within the discretion of the trial court .... We have explained the reason underlying the great breadth of the trial court’s discretion over such matters: There are, to be sure, sometimes, verdicts of this kind, when the trial judge is required by the interests of justice to set them aside. That such verdicts are infrequent is a tribute to the general intelligence, fairness and integrity of juries. This power of supervision and correction which the judge has over the verdict is an essential part of the jury system. It tends to make jurors more careful in reaching their conclusions, and gives confidence to all suitors that the finding of a jury will not be affected by any improper motives. Trial by jury, in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve [persons] before an officer vested with authority to cause them to be summoned and empan-elled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve [persons], in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if in his opinion it is against the law or the evidence. . . . [Consequently], the proper standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion. Accordingly, the ruling of the trial court on the motion to set aside the verdict as excessive is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 281-82; see Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 662, 935 A.2d 1004 (2007) (“[t]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of § 52-216a] rests solely within the discretion of the trial court” [internal quotation marks omitted]); Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996) (proper standard of review of trial court’s decision to grant or deny motion to set aside verdict as excessive as matter of law is that of abuse of discretion); Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991) (same); Fontana v. Zymol Enterprises, Inc., 95 Conn. App. 606, 611, 897 A.2d 694 (2006) (function of this court to determine whether trial court abused its discretion in denying defendant’s motion to set aside verdict); Bruneau v. Seabrook, 84 Conn. App. 667, 674, 854 A.2d 818 (same), cert. denied, 271 Conn. 930, 859 A.2d 583 (2004).

Our Supreme Court acknowledged that the “shocks the sense of justice standard provides vague guidance”; (internal quotation marks omitted) Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 282; and that a reviewing court is faced with “the thorny task of deferentially reviewing a decision that itself was required to employ deferential review, where the primary challenge is that the trial court abused its discretion by failing to accord proper deference to the jury’s verdict.” Id., 285. “In a sense, [an appellate court] must retrace the steps of the trial court. That is, we must begin by reviewing the evidence, construed in the light most favorable to sustaining the verdict, just as the trial court was required to do. We then must examine the trial court’s decision in such a way that we employ every reasonable presumption in favor of its correctness.” Id.

The following additional facts are necessary for the resolution of this issue. Interrogatories were not requested by the parties, and, therefore, none was submitted to the jury. Instead, the jury used the plaintiffs verdict form to specify each element of the damages it awarded. The jury listed $34,222 as lost wages. In the medical bills section of the verdict form, the jury awarded the plaintiff damages for (1) Vernon Walk-In Center for treatment on December 4, 2006, in the amount of $306, (2) Orthopedic Associates of Central CT, P.C., for treatment on April 2, 2007, in the amount of $235 and (3) Integrated Rehabilitation Services for treatment during the time period of April 6, 2007, through April 20, 2007, in the total amount of $1222. The jury did not award the plaintiff damages for medical treatment that he had received after April 20, 2007. The total damages awarded by the jury for medical treatment totaled $1762, and it awarded no damages for future medical bills. The jury awarded $35,984 for the economic damages and $50,000 in noneconomic damages, for a total award of $85,984.

The defendants argue that by comparing the jury’s award of medical bills to the evidence at trial, “[i]t is a reasonable interpretation of the verdict form that the jury did not think [the] plaintiff injured his right shoulder in the accident since [it] did not award any treatment after [April 20, 2007], which is the date [the] plaintiff stopped treating for his right wrist.” In other words, the defendants claim that $50,000 in noneco-nomic damages for the right wrist sprain is excessive and outside the limits for fair and reasonable compensation.

The defendants have not provided us with any support for their contention that despite the lack of jury interrogatories, the verdict form clearly established that the jury rejected the claim of the plaintiff that he suffered a right shoulder injury. We note that the better procedure would have been to use jury interrogatories in accordance with Practice Book § 16-18. Nevertheless, even if we assume, arguendo, that the jury rejected the plaintiffs claimed shoulder injury, we conclude that the award of $50,000 in noneconomic damages does not shock the sense of justice, and, therefore, the trial court did not abuse its broad discretion in denying the motions for a new trial and remittitur.

The plaintiff testified that following the accident, his wrist and elbow were “really sore . . . .” He described the pain in his wrist as “intense.” The next day, he received medical treatment, including a splint. Approximately four months later, he sought treatment from a physician because his wrist only had improved “a little bit” and it was interfering with his ability to work as a steeplejack, due to numbness in his fingers. He testified that following the accident, he has difficulty sleeping and has lost the ability to play golf. During cross-examination, the plaintiff stated that after five physical therapy sessions, as of April, 2007, his elbow and wrist had improved dramatically but continued to remain an issue.

It is well established that “the amount of an award [of damages] is a matter peculiarly within the province of trier of facts. . . . [T]he court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant.” (Internal quotation marks omitted.) Thorsen v. Durkin Development, LLC, 129 Conn. App. 68, 74, 20 A.3d 707 (2011). It is not the size of the verdict but, rather, whether it falls within the uncertain limits of just damages or shocks the sense of justice so as to lead to the conclusion that the jury was improperly influenced by partiality, prejudice, mistake or corruption. See Sovereign Bank v. Licata, 116 Conn. App. 483, 505, 977 A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36 A.3d 662 (2012) (certification improvidently granted).

We cannot conclude that the court abused its discretion in denying the defendants’ motions for a new trial or remittitur. The parties stipulated to the plaintiffs life expectancy of eighteen years. There was evidence of the pain suffered by the plaintiff at the time of the accident, his difficulty sleeping and his loss of the ability to engage in a recreational activity. Additionally, the plaintiff stated that although his wrist had improved, it remained an “issue” for him. Given the uncertain nature of compensation for noneconomic damages, and the fact that a generous award of said damages is permissible, so long as it does not shock the sense of justice, the trial court properly denied the defendants’ motions. See Johnson v. Chaves, 78 Conn. App. 342, 347, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).

II

The defendants next claim that the court improperly admitted certain documents into evidence. Specifically, they argue that the court improperly admitted into evidence trial exhibits 6 through 11 over their objections that the documents were self-serving and hearsay. We are not persuaded.

The following additional facts are necessary for our resolution of this claim. During the testimony of the plaintiff, his attorney moved to admit exhibit 10 into evidence. Exhibit 10 is a letter written by the plaintiff to Patricia Lee, the administrator of the Universalist Church in West Hartford. In this letter, dated July 8, 2008, the plaintiff informed Lee that he would be unable to perform the work that she had requested “involving the painting of the church front, repair of soffits [and] fascias and counterflashing and the miscellaneous projects” that had been discussed for the contract price of $81,000. The plaintiff further wrote that the reason he could not perform this work was an injury to his shoulder, causing him to “slow down” his work schedule. Per the plaintiffs request, Lee signed the letter at the bottom to acknowledge its receipt on behalf of the Universalist Church and returned it to the plaintiff.

The defendants’ counsel objected on the grounds that the letter was a self-serving letter by the plaintiff and constituted “hearsay as to the signature.” The plaintiffs counsel responded that the letter was a business record “because [the plaintiff was] advising ... an existing customer.” The defendants’ counsel again argued that it was self-serving. The court admitted the letter into evidence as a full exhibit without any further explanation. The plaintiffs counsel then sought to have a contract between the plaintiff and the Universalist Church regarding a separate, specific project admitted into evidence as exhibit 11. Over the same objections raised by the defendants, the court admitted the contract into evidence. Specifically, the defendants claimed that Lee’s signature on the contract constituted inadmissible hearsay. The court, after determining that the plaintiff had started and received partial payment for the specific project listed in this contract, admitted it into evidence. The plaintiff stated that he had not completed this project and, therefore, had not received approximately $60,000.

The plaintiff then sought to introduce several letters into evidence that were similar to the one described in exhibit 10. Exhibit 7 was a letter written by the plaintiff to Sebastian Mazzarella regarding a proposed project to rebuild a front porch for $12,600; exhibit 8 was a letter written by the plaintiff to Peter Parrotta regarding a proposed project to perform gutter and roof repair work for $160 per hour; and exhibit 9 was a letter written by the plaintiff to Shirley Finney regarding a proposed project for a roof replacement for $20,000. Each of these letters contained a signature at the bottom, indicating that the letter had been received, and was admitted into evidence over the defendants’ objection.

The plaintiff then sought to admit into evidence exhibit 5, which was a list created by the plaintiff of long-standing customers and the amount of billings that he had lost as a result of his injury. During voir dire by the defendants’ counsel, the plaintiff acknowledged that he had created this list for the purpose of litigation. The court noted the defendants’ objection to this exhibit’s admission into evidence. Finally, Diane P. Johnson, the plaintiff’s wife, testified that she maintained the plaintiffs financial records. During the direct examination of Diane Johnson, the plaintiff’s counsel sought to introduce exhibit 6 into evidence, an invoice from the plaintiffs company to Travelers Insurance Company (Travelers) dated November 2, 2006, in the amount of $14,130. This exhibit also included the check from Travelers paying the invoice. The defendants’ counsel objected on the basis that the invoice was dated before the accident and was self-serving. Without hearing from the plaintiffs counsel or any further elaboration, the court admitted the document into evidence.

On appeal, the defendants argue that exhibits 5 through 11 were hearsay and did not fall within a recognized exception and, therefore, improperly were admitted into evidence. The defendants did not raise a hearsay objection to exhibit 6 at trial, and, therefore, we need not review their claim of error with respect to that particular exhibit. “Practice Book [§ 5-5] provides in pertinent part that [w]henever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he [or she] desires it to go upon the record, before any discussion or argument is had. [Practice Book § 60-5] provides in [relevant] part that the [appellate courts are] not bound to consider a claim unless it was distinctly raised at the trial .... We have noted that [t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefore is to alert the court to any claims of error while there is still an opportunity for correction. . . . This rule is essential to avoid trial by ambush [of the presiding judge and the opposing party]. . . . These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Citations omitted; internal quotation marks omitted.) State v. Jose G., 290 Conn. 331, 342-43, 963 A.2d 42 (2009). Accordingly, we decline to review the defendants’ claim with respect to the admissibility of exhibit 6.

We now turn to exhibits 7, 8, 9, 10 and 11. As stated above, exMbits 7 through 10 consisted of letters written by the plaintiff to alert his customers that he would be unable to perform work for them due to his health. These letters were signed by the customers and returned to the plaintiff. Exhibit 11 is a signed contract between the plaintiff and the Universaiist Church for repair work to be performed by the plaintiff. The defendants objected to the admission of these exhibits as self-serving documents and that the signatures on these documents were inadmissible hearsay. The plaintiff argued that they were admissible as business records. The court admitted the documents but never set forth a basis for its ruling.

We conclude that the record is inadequate for our review. This court is left to speculate as to whether the trial court concluded that the exhibits constituted business records and were admissible under that exception to the rule against hearsay, or whether the signatures on the letters were not offered for the truth of the matter asserted, and therefore not hearsay. “This court has consistently adhered to the rule of Practice Book § 61-10, which provides that it is the responsibility of the appellant to provide an adequate record for review. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Internal quotation marks omitted.) Modugno v. Colony Farms of Colchester, Inc., 110 Conn. App. 200, 208-209, 954 A.2d 270 (2008).

Finally, we turn to the question of whether the court properly admitted into evidence exhibit 5, a list created by the plaintiff of long-standing customers and the amount of billings that he had lost as a result of his injury. At trial, the defendants’ counsel objected to this document being admitted into evidence but failed to identify the basis of his objection. The defendants’ counsel then conducted a voir dire examination of the plaintiff who stated that he had prepared exhibit 5 to “illustrate how [the] injury had affected [his] ability to make a living” and that it had been prepared for the purposes of litigation. After the court admitted the exhibit into evidence, the defendants’ counsel asked if his objection had been noted but never set forth the grounds for the objection.

We conclude that the record is inadequate to review the defendants’ claim with respect to the admission of exhibit 5. The record does not reveal the basis for the objection at trial, or the court’s grounds for admitting the exhibit into evidence. Furthermore, the defendants have inadequately briefed their claim as to exhibit 5. As we previously have mentioned, the thrust of the defendants’ appellate argument is that the signatures by the customers of the plaintiff constitute inadmissible hearsay. There is no such signature on this document. Finally, we note that the defendants have failed to show any harm from this document’s admission into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time of this accident, Andrew C. Pike was a minor with a learner’s permit, not a driver’s license, and was supervised in the operation of the motor vehicle by Daniel J. Pike.

       At a collateral source hearing, the parties stipulated to a reduction of $1457 in medical bills, leaving a balance of $305.

       We are mindful of the decision in Deas v. Diaz, 121 Conn. App. 826, 837, 988 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), in which this court stated: “Looking to the plain language of § 52-216a and the case law that has interpreted it, we conclude that the court’s decision on whether to deny or to grant a motion for remittitur because it is excessive ‘as a matter of law’ is entitled to plenary review on appeal; the court’s decision as to the amount of the remittitur, if ordered, should be analyzed under an abuse of discretion standard, however.” See also J. Wildes, “Tort Developments in 2010,” 85 Conn. B.J. 1, 4-5 (2011).
      Our Supreme Court’s decision in Saleh, released after our decision in Deas, clearly established abuse of discretion as the applicable standard of review with respect to the issue of whether the trial court properly denied a motion for remittitur. Finally, we note that our position regarding the appropriate standard of review is consistent with a case recently decided by this court. See Tomick v. United Parcel Service, Inc., 135 Conn. App. 589, 615 n.18, 43 A.3d 722 (2012) (Appellate Court bound to apply abuse of discretion standard as set forth in Saleh).

       “The purpose of ajury Interrogatory is to elicit a determination of material facts and to furnish the means of testing the correctness of the jury’s verdict.” Sinert v. Olympia & York Development Co., 38 Conn. App. 844, 852 n.1, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995); see Earlington v. Anastasi, 293 Conn. 194, 200, 976 A.2d 689 (2009). Jury interrogatories also act as a guide and written chronicle of the jury’s reasoning. Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 710, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

       To the extent that there was contradictory evidence regarding the duration of the plaintiffs wrist injury, we note that “[t]he existence of conflicting evidence [further] curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 55, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

       We note that at one point in their brief, the defendants state: “The court allowed into evidence plaintiffs exhibits 5, 6, 7, 8, 9, 10 and 11 over defendants’ objections that they were hearsay, self-serving and without proper foundation.” As we stated previously, the defendants objected at the trial to the admission of exhibit 6 as “self-serving.” Aside from this single sentence, the defendants have not presented any legal analysis as to why the court committed reversible error when it admitted exhibit 6 into evidence. “[W]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) State v. Claudio C., 125 Conn. App. 588, 600, 11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

       “To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in . . . [General Statutes] § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 116, 956 A.2d 1145 (2008). See Conn. Code Evid. § 8-4.

       “Under the hearsay rule, a statement, other than one made by the declar-ant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted; Conn. Code Evid. § 8-1; generally is inadmissible in court. Conn. Code Evid. § 8-2.” (Internal quotation marks omitted.) State v. Garlington, 122 Conn. App. 345, 360, 998 A.2d 1197, cert. denied, 298 Conn. 910, 4 A.3d 835 (2010). If evidence is not offered for the truth of what it asserted, it does not constitute hearsay. See Sowinski v. Sowinski, 72 Conn. App. 25, 31, 804 A.2d 872 (2002).

       See footnote 6 of this opinion.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    VERNON J. LEFTRIDGE, JR. v. KENISHA WIGGINS
    (AC 33164)
    DiPentima, C. X, and Gruendel and Sheldon, Js.

      Argued March 7
    officially released June 12, 2012

      Vernon J. Leftridge, Jr., pro se, the appellant (plaintiff), filed a brief.

      Kenisha Wiggins, pro se, the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Vernon J. Leftridge, Jr., appeals from the judgment of the trial court modifying his child support obligation from $50 per week to $150 per week. On appeal, the plaintiff argues, inter alia, that he was not served with a copy of the motion to modify, and, therefore, the order modifying his obligation was entered in violation of his due process rights. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts. On May 19, 2005, the court, Swienton, J., awarded the parties joint custody of their minor son and ordered the plaintiff to pay $50 per week to the defendant, Kenisha Wiggins, as child support. On May 28,2010, the state of Connecticut, support enforcement services, filed a motion to modify on behalf of the defendant, seeking an increase in the plaintiffs child support obligation. The record reflects a return of service indicating that this motion to modify was served on the plaintiff by abode service at 49 Spring Street, apartment A-2, Hartford, Connecticut, on May 25,2010. The notice to the plaintiff, along with the order for hearing and summons, likewise indicates that it was served on the plaintiff at the same address, care of Sylvontae Bishop. On July 13, 2010, the family support magistrate, Richard G. Adams, ruling on the state’s motion to modify, ordered an increase in the plaintiffs child support obligation to $150 per week. On August 24, 2010, the plaintiff filed a motion to modify. On August 26,2010, the plaintiff filed an “immediate motion to immediately vacate” the support order entered by the family support magistrate. The plaintiff argued, in part, that he had not been served with a copy of the motion to modify and did not receive notice of the July 13, 2010 court date.

The family support magistrate held a hearing on the matter on August 27, 2010. The defendant, Theresa Drew, the support enforcement officer, and David Gage, the deputy chief clerk of the court, were present at this hearing. The plaintiff was not present. Gage stated at the hearing that when the plaintiff came to the clerk’s office to see the state’s motion to modify, it was not in the file. Gage also stated that subsequent notice of the motion, which was mailed to the plaintiff at the Spring Street address, was returned to support enforcement services as undeliverable. Drew, on behalf of the state, explicitly stated that she did not contest the fact that the plaintiff had not been served with the state’s motion to modify. On this basis, the family support magistrate indicated that the plaintiffs motion to vacate, which he was treating as a motion to open, was granted “on the ground that proper jurisdiction was never obtained.” The family support magistrate accordingly reinstated the original support order of $50 per week.

Before the hearing adjourned, Drew indicated on the record that support enforcement services would reserve the plaintiff properly with the motion to modify, either by using his post office box or by serving him in person at one of the parties’ upcoming court dates. The family support magistrate indicated that the motion to modify would be scheduled at the same time as all other outstanding motions in the case, including the plaintiffs motion to modify. The record reflects that the court clerk then placed the plaintiffs motion to modify and the state’s motion to modify back on the docket to be heard on the same day. A hearing was scheduled to take place before the trial court, Shluger, J., on September 27, 2010.

On that date, the defendant appeared at the hearing. Neither the plaintiff nor a representative from support enforcement services was present. After making a finding of notice as to the plaintiff, the court ordered, inter alia, an increase in the plaintiffs child support obligation to $150 per week, retroactive to May 28, 2010, the date of filing of the state’s motion to modify.

The plaintiff next filed a series of motions challenging the September 27, 2010 orders. In these motions the plaintiff claimed that he had not been served with notice of the September 27, 2010 hearing. On February 14, 2011, the court conducted an evidentiary hearing on the plaintiffs motions. At the conclusion of the hearing, the court indicated that it found the plaintiffs testimony “completely not credible” with regard to notice and denied the plaintiffs motions. On February 15, 2011, the plaintiff filed the present appeal.

On appeal, the plaintiff claims that the support orders of September 27, 2010, were entered in violation of his due process rights, as he had not been served with the motion to modify and, therefore, did not have a meaningful opportunity to be heard. We agree.

We initially note that the plaintiff has a substantial interest in any order that the court may render for the support of his minor child. See Winick v. Winick, 153 Conn. 294, 297, 216 A.2d 185 (1965). “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. ... It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 287, 928 A.2d 566 (2007).

We further note that “[o]ur review of the trial court’s factual findings is limited to the question of whether the findings are clearly erroneous. ... 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 corut on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ” (Citation omitted; internal quotation marks omitted.) Waterview Site Services, Inc. v. Pay Day, Inc., 125 Conn. App. 561, 566-67, 11 A.3d 692 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

In the present case, although neither the plaintiff nor a representative of support enforcement services was present at the hearing on September 27, 2010, the court found that the plaintiff had actual notice of the proceedings and increased the plaintiffs support obligation on that date. In its articulation, the court stated that the state’s motion to modify was served at the plaintiffs usual place of abode on May 25, 2010. The court also stated that the matter was scheduled for a hearing on August 27, 2010, but was continued by the family support magistrate, at the request of the plaintiff. As stated earlier in this opinion, however, the plaintiff was not present at the hearing on August 27, 2010. On that date, the family support magistrate considered whether the plaintiff had been served properly with a copy of the motion. At the conclusion of the hearing, the family support magistrate, ruling from the bench, noted that the presumption of proper service had been rebutted. The family support magistrate, therefore, vacated its prior support order “on the ground that proper jurisdiction was never obtained.” Drew indicated that support enforcement services would re-serve properly the motion to modify on the plaintiff. On the basis of our review of the entire record, therefore, we conclude that the court’s finding that the state’s motion to modify was served on the plaintiff on May 26, 2010, was clearly erroneous. See Waterview Site Services, Inc. v. Pay Day, Inc., supra, 125 Conn. App. 566-67. We further conclude that by acting on the motion to modify, even though the plaintiff had not been served with a copy of the motion, the court denied the plaintiff his due process right to appear and to be heard. See Pritchard v. Pritchard, supra, 103 Conn. App. 287-88. Under these circumstances, the court improperly modified the plaintiffs child support obligation from $50 to $150 per week. See generally Winick v. Winick, supra, 153 Conn. 299.

The judgment is reversed and the case is remanded with direction to vacate the support orders entered by the court on September 27, 2010.

In this opinion the other judges concurred.

       The plaintiff filed an appeal to this court on February 15, 2011, followed by several amended appeals that include proceedings subsequent to the modification at issue. Because we conclude that the plaintiff was not served properly with the motion to modify that resulted in the increase in his support obligation, we need not consider separately each of the amended appeals.

       The transcript of the August 27, 2010 hearing reveals the following:
      “The Court: But if it was — was this the first time down, right?

        “[Drew]: This was the first time down, and I think that there was some testimony [the defendant] last knew of [the plaintiffs] address as being the Spring Street address, and sol think we went forward. But we actually have—
      “The Court: I would have looked for service to make sure that he’d been served.
      “[Drew]: Well, it did show abode service but he’s apparently claiming that’s not his address.
      “The Court: But if there was no motion in the file, I wouldn’t have had any way of determining that.
      “[Gage]: No, you didn’t have that motion in the file. It was not in the file. Two days ago, it was not in the file. When he came to get a copy of it, I could not provide it. There was subsequent notice mailed to [the plaintiff] at the 49 Spring Street address that was returned to support enforcement [services] with a return to sender, undeliverable, person does not live here. So it’s not—
      “The Court: Now when you—
      “[Gage]: It’s not only a plausible argument, it seems a very airtight argument that he was not given the proper notice and the due process.”

       The transcript of the hearing on August 27, 2010 reveals the following:
      "The Court: Is there any problem, Ms. Drew, to get this done over again correctly?
      “[Drew]: No. In fact, we have a new — we have a copy of the motion for modification and we’ll try to re-serve it properly.
      “The Court: Okay. You have a good address now?
      “[Drew]: Well, I have a [post office] box, but it’s my understanding he has filed other motions and has court dates coming up so if we can’t serve it at the [post office] box, we’ll serve him when he’s here. . . .

        “[Gage]: [W]e press that support enforcement [services] send him certified mail a new motion to modify and that would suffice as the notice since he does have a current appearance and does have motions pending.
      “The Court: All right, that’s right. Then we wouldn’t need to go through the process of personal service. All right. Do you want to suggest the date that you want them to use in that? You’re just going to schedule it? Once I do that, you’11 schedule the whole thing?
      “[Gage]: We’re going to use the date that was originally scheduled for his motions.
      “The Court: Sine. Okay. All right.
      “[Gage]: We might as well hear them all together so she doesn’t have to come again and everybody appears once.”

         The court issued notice of this hearing on September 1, 2010.

       The court did not act on the plaintiffs motion to modify on September 27, 2010. The defendant stated at the hearing that the plaintiff had called her and told her that he had not marked his motion ready and would not be attending the hearing. The defendant also indicated that she told the plaintiff that she would be attending the hearing on September 27, 2010.

       On November 22,2010, the plaintiff filed a motion captioned “Immediate Motion to Immediately Vacate Apparent September 27,2010 Support Order.” On December 13,2010, the plaintiff filed a “Supplemental Motion to Immediately Vacate September 27, 2010 Support Orders.” On December 20, 2010, the plaintiff filed a motion captioned “Immediate Motion for Order.”

       With regard to the finding of notice, the court later articulated the basis for the September 27, 2010 support orders as follows:
      “1. Prior to the September 27, 2010 hearing, the defendant mother alerted the plaintiff father that she intended to appear in court on September 27, 2010;
      “2. The plaintiff father had notice of the September 27, 2010 proceedings, both from the defendant mother’s telephone messages and from the court’s notice mailed to him on September 1, 2010;
      “3. The plaintiff father filed a motion dated September 26,2010, attempting to postpone the proceedings scheduled for September 27, 2010 . . . .”

       We note that the plaintiff did not appear for oral argument before this court on March 7, 2012. When the clerk of court attempted to contact the plaintiff by telephone, he received a message indicating that the voice mail was full.

       The plaintiff also argues that the court improperly modified and reentered the order previously vacated by the family support magistrate. The plaintiff contends that the court had no authority to take this action because no appeal was taken from the August 27, 2010 order of the family support magistrate. We disagree with the plaintiff’s characterization of the proceedings. As previously stated, on August 27,2010, the family support magistrate vacated his prior order entered on July 13, 2010. Following a hearing on September 27, 2010, the court entered its own support orders. It did not modify and reenter the order of the family support magistrate.

       Although Drew stated that support enforcement services would re-serve the motion to modify on the plaintiff, the record indicates that this was not done. By letter dated November 23, 2010, Drew notified the plaintiff as follows: “I attempted to return your call but your voice mail was full. Please be advised that support enforcement had no involvement in the modification hearing that was held by Judge Schluger on 9/27/10. Support enforcement was not aware that the order had been modified again (after the family support magistrate vacated the 5/25/10 modification) until a copy of the new order was sent to our office. The order indicates that Judge Schluger made a finding of notice to you. You may want to consult with an attorney if you have issues with the judge’s orders.” Drew also testified at a later hearing before the trial court, Boland, J., that support enforcement services did not re-serve the motion to modify on the plaintiff.

       We also note that the court’s order increasing the plaintiffs child support obligation was made retroactive to May 28, 2010, the date of the filing of the motion to modify. General Statutes § 46b-86 (a) provides in relevant part, however, that “[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the

        date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.)


author: DUPONT, J.

text:
    HELYN BYRD v. WENDELYNNE ORTIZ ET AL.
    (AC 33470)
    DiPentima, C. X, and Gruendel and Dupont, Js.

      Argued April 11
    officially released June 12, 2012

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

      Miles N. Esty, with whom, on the brief, was Peter C. Bowman, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff, Helyn Byrd, appeals from the judgment rendered by the trial court in favor of the defendants, Wendelynne Ortiz and Nationwide Insurance Company of America (Nationwide), after the court granted the defendants’ motion to strike all four counts of the plaintiffs revised complaint. The sole issue on appeal is whether the court improperly granted the motion to strike as to counts one and three of the revised complaint alleging claims of negligence. We conclude that the motion to strike should not have been granted as to those counts and reverse that portion of the judgment of the trial court.

The following facts, as alleged in the revised complaint, are relevant to our resolution of the issue on appeal. In July, 2006, the plaintiff contacted Ortiz, a licensed insurance agent employed and authorized by Nationwide to sell insurance policies on its behalf, about purchasing an automobile insurance policy for her two vehicles. Ortiz advised the plaintiff to purchase a Nationwide automobile insurance policy with bodily injury liability coverage in the amount of $20,000 per person and $40,000 per accident and uninsured/underin-sured motorist coverage in the amount of $20,000 per person and $40,000 per accident. On July 15, 2005, the plaintiff purchased a Nationwide automobile insurance policy with the coverage recommended by Ortiz (policy). Each year thereafter, on the advice of Ortiz and with her consent, the plaintiff renewed the policy with the same levels of coverage. Ortiz never advised the plaintiff to increase or otherwise change the amount of coverage under the policy.

In 2009, while riding as a passenger in a vehicle insured under the policy, the plaintiff was involved in an accident with another motor vehicle. The plaintiff brought a claim against the owners of the other vehicle for injuries and damages she sustained as a result of the accident. The owners of the other vehicle maintained automobile insurance with bodily injury liability coverage in the amount of $100,000 per person. The plaintiff settled her claim against the owners for the owners’ policy limit of $100,000. The plaintiff alleges that the value of the injuries and damages she sustained exceeded $100,000, and, as a result of Ortiz’ negligence in failing to advise the plaintiff properly or to inquire of her about the appropriate amount of uninsured/ underinsured motorist coverage, she was without sufficient underinsured motorist coverage to compensate her for her losses.

On November 3, 2010, the plaintiff filed her revised, four count complaint against the defendants, alleging claims of negligence and breach of fiduciary duty. On November 19, 2010, the defendants filed a motion to strike all four counts of the revised complaint. On December 10, 2010, the plaintiff filed an objection to the defendants’ motion with respect to counts one and three, alleging claims of negligence. The court heard oral argument on December 13,2010. In a memorandum of decision dated March 21, 2011, the court granted the defendants’ motion to strike, concluding that the revised complaint failed to state a cause of action for negligence because it did not allege fraud or any other inequitable conduct. Thereafter, on May 3, 2011, the court rendered judgment in favor of the defendants. This appeal followed.

The plaintiff claims that the court improperly granted the defendants’ motion to strike her claims for negligence. Specifically, the plaintiff argues that (1) the court’s reliance on Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 602 A.2d 1007 (1992) was improper and (2) counts one and three of the revised complaint alleged facts sufficient to withstand the defendants’ motion to strike. We agree.

“We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).

I

The plaintiff argues that the trial court’s reliance on Harlach, as a ground upon which to grant the defendants’ motion to strike her claims for negligence, was improper. We agree.

In its memorandum of decision granting the defendants’ motion to strike, the court adopted the defendants’ interpretation of Harlach, citing Harlach for the proposition that when a client is aware of the amount of insurance coverage being procured, the client must allege fraud or inequitable conduct to sustain a cause of action for negligence against an insurance agent or insurance company for the agent’s failure to recommend sufficient insurance coverage to the client. The trial court stated: Where a party enters into an insurance contract, a party cannot allege that it was not aware what benefits it was receiving or reducing unless fraud or inequitable conduct [o]n the part of the other party is alleged.’ . . . The plaintiff has not alleged fraud or inequitable conduct in her revised complaint. Even if it could be found that Ortiz was negligent in recommending such a low amount of coverage, mere negligence does not rise to the level of inequitable conduct.” (Citation omitted.)

In Harlach, our Supreme Court’s discussion of the need for fraud or inequitable conduct was confined to its consideration of whether the equitable principle of reformation was available to negate the plaintiff policyholder’s written request, to the defendant insurance company, for a lesser amount of uninsured motorist coverage. Harlach v. Metropolitan Property & Liability Ins. Co., supra, 221 Conn. 186, 190-91. The Harlach court stated: “The defendant argues that the trial court has reformed the contract that unambiguously provided uninsured motorist coverage of $20,000 per person and $40,000 per accident because the policyholder was unilaterally mistaken as to what coverage he was surrendering when he requested the lesser amount of coverage. The defendant argues that reformation of a contract is not available when the mistake, if any, is unilateral and is not accompanied by fraud or inequitable conduct on the part of the other party. We agree.” Id., 190. “Here, there was neither claim nor proof of a mutual mistake, fraud or inequitable conduct on the part of either party. Since none of these elements was present, application of the equitable principle of reformation was not proper.” Id., 191.

In the present case, the plaintiffs action is not for reformation of a contract of insurance but for negligence; specifically, the insurance agent’s failure to inquire into or to advise the plaintiff properly of the sufficient amount of insurance coverage. Harlach is not applicable. We conclude, therefore, that it was improper for the trial court to strike counts one and three of the revised complaint on the ground that those counts did not allege fraud or inequitable conduct.

II

The plaintiff next claims that counts one and three of the revised complaint state legally sufficient claims for negligence because those counts allege that Ortiz had a duty to exercise reasonable skill, care and diligence to ensure that the plaintiff had proper insurance coverage, that Ortiz breached that duty by not advising the plaintiff to obtain sufficient uninsured/underinsured motorist coverage and that the plaintiff sustained damages as a result of the breach. The defendants maintain that the revised complaint does not state legally cognizable claims for negligence because an insurance agent has no duty to advise an insured of the sufficiency of insurance coverage. Examination of the applicable law and the facts alleged in the revised complaint leads us to conclude that counts one and three allege facts that are legally sufficient to maintain a cause of action for negligence, and thereby to avert the granting of a motion to strike.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. ... If a plaintiff cannot prove all of those elements, the cause of action fails.” (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn. App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

“The existence of a duty of care is a prerequisite to a finding of negligence. . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Citations omitted; internal quotation marks omitted.) Lachowicz v. Rugens, 119 Conn. App. 866, 868, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).

The duty of care owed by an insurance agent to his or her client in advising the client on matters of insurance coverage was articulated by this court in Dimeo v. Burns, Brooks & McNeil, Inc., 6 Conn. App. 241, 504 A.2d 557, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986). “An insurance agent has the duty to exercise reasonable skill, care and diligence to see that his client has proper [insurance] coverage. . . . Where [the agent] undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed . . . .” (Citation omitted; internal quotation marks omitted.) Id., 244.

In Dimeo, this court considered the duty owed by an insurance agent to her client where the client, in an action against the agent and the insurance company, alleged, inter alia, that the agent negligently had failed to advise the client to purchase sufficient uninsured/ underinsured motorist coverage. Id., 242. On appeal, the client argued that the court’s charge to the jury did not adequately define the duty of care the insurance agent owed to the client. Id., 243-44. This court reviewed the trial court’s charge to the jury and disagreed, finding that the instructions given with respect to the agent’s duty of care were “legally correct” and properly “adapted to the issues in the case . . . .” Id., 245.

“The court instructed the jury that selling insurance is a specialized field with specialized knowledge and experience, and that an agent has the duties to advise the client about the kind and extent of desired coverage and to choose the appropriate insurance for the client. The court told the jury that the client ordinarily looks to his agent and relies on the agent’s expertise in placing his insurance problems in the agent’s hands. The court instructed the jury that, if the agent performs these duties negligently, he is hable therefor, just as other professionals are. The court also instructed that the standard of care is not that of ordinary negligence but the knowledge, skill and diligence of insurance agents in Connecticut in [that time period], in similar cases. The court further instructed the jury, on the basis of the expert testimony produced in the case . . . that an agent has the duty to explain uninsured motorist coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client. The court concluded this part of the charge by instructing the jury that the proper amount of coverage in this case would have been $300,000. These instructions were legally correct, adapted to the issues in the case, and clearly and fairly presented the case to the jury.” (Emphasis added.) Id., 244-45.

In support of their argument that an insurance agent has no duty to advise an insured of the sufficiency of insurance coverage, the defendants attempt to distinguish Dimeo. We are not persuaded. The plaintiff in Dimeo alleged that the insurance agent was negligent in “failing to offer and obtain $300,000 of [uninsured/ underinsured motorist] coverage, which was the amount necessary for reasonably adequate coverage” and “fail[ing] to advise the plaintiff to obtain uninsured motorist coverage in that amount . . . .” Id., 242. On appeal, this court was tasked with examining the adequacy of the trial court’s charge to the jury on the applicable duty of care. This court concluded that the charge, which included the instruction that “an [insurance] agent has the duty to explain uninsured motorist coverage, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount, and to attempt to procure that amount and offer it to the client,” was a correct statement of the law. Id., 245.

We are satisfied that Dimeo contains an accurate statement of the duty of care that an insurance agent owes to his or her client in advising the client with respect to uninsured/underinsured motorist coverage. We conclude, as a matter of law, that Ortiz had a duty to explain underinsured/uninsured motorist coverage to the plaintiff, to explain the consequences of not having a sufficient amount of such coverage, to recommend the proper amount of coverage based on the plaintiffs individual circumstances and to attempt to procure that amount of coverage and offer it to the plaintiff. See id., 244-45.

With these principles in mind, we examine counts one and three of the plaintiffs revised complaint. Count one, labeled “Negligence (Against Wendelynne Ortiz),” alleges that Ortiz “had a duty to exercise reasonable skill, care, and diligence in advising the [p]laintiff to purchase a policy with sufficient coverage . . . that would secure all of her assets . . . and provide sufficient uninsured/underinsured motorist coverage” and “to inquire of the [p]laintiff about any and all assets she needed to secure under said policy in order to properly advise the [p]laintiff to purchase a policy that would secure all of her assets . . . and provide sufficient uninsured/underinsured motorist coverage”; that Ortiz “advised the [p]laintiff to purchase a Nationwide automobile insurance policy . . . with policy limits for each person/each accident of [b]odily [i]njury in the amount of $20,000/$40,000 and [u]ninsured and [u]nder-insured motorist in the amount of $20,000/$40,000, which the plaintiff did thereafter purchase”; that Ortiz breached the duty owed to the plaintiff by, inter alia, “failing to inquire of the [p]laintiff about any assets . . . she needed to secure under said policy” and “failing to advise the [p]laintiff to purchase an insurance policy that would provide sufficient uninsured/underinsured motorist coverage”; and that, as a result of Ortiz’ failure to advise the plaintiff properly, the plaintiff did not have sufficient underinsured motorist coverage and incurred damages in the form of unreimbursed costs and expenses. Count three, labeled “Negligence (Against Nationwide Insurance Co.),” alleges that Nationwide “is responsible to the plaintiff for the negligence of its agent and employee, the defendant, Wendelynne Ortiz.”

The facts alleged in counts one and three of the revised complaint allege duty, breach of that duty, causation and actual injury. If provable, these facts would support causes of action for negligence against each defendant. See Angiolillo v. Buckmiller, supra, 102 Conn. App. 711. “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252. We conclude, therefore, that the court improperly granted the motion to strike counts one and three of the revised complaint.

The judgment is reversed as to counts one and three of the revised complaint alleging negligence and the case is remanded with direction to deny the motion to strike as to counts one and three and for further proceedings according to law; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Count one of the revised complaint alleges negligence as to Ortiz. Count three alleges negligence as to Nationwide, on the ground that it is vicariously liable for the actions of Ortiz, its agent and employee. The plaintiff consented to the granting of the defendants’ motion to strike counts two and four of the revised complaint alleging breach of fiduciary duty as to both defendants, and does not appeal from the judgment rendered on those counts.

       We note that this amount of insurance coverage is the minimum permitted under state law. See General Statutes § 14-112 (a).

       In the memorandum of law submitted in support of their motion to strike, the defendants argued: “[I]n Harlach . . . the Connecticut Supreme Court found that there is no legal cause of action against insurance agents and insurance compames by a plaintiff, who purchased an insufficient amount of [insurance] coverage to cover injuries in an accident, without an allegation of fraud or inequitable conduct. In the present case, the plaintiff has not made any allegation of fraud by the defendants, or any other inequitable conduct. The complaint does allege that the plaintiff willingly entered into an insurance contract. The only allegation is that [Ortiz] did not advise the plaintiff of the risks of purchasing $20,000/$40,000 worth of underinsured motorist coverage. The caselaw in Harlach is clear. Count [o]ne and [c]ount [t]hree of the revised complaint are legally insufficient. They do not allege fraud, duress or any other inequitable conduct. Mere negligence does not rise to the level of inequitable conduct.” (Citation omitted.) As discussed in part I of this opinion, the defendants’ truncated characterization of our Supreme Court’s holding in Harlach, an action for reformation of an insurance contract, has no place in our inquiry, in the present case, into whether the plaintiffs allegations of negligence are sufficient to withstand the defendants’ motion to strike.

       We note that the statement quoted by the trial court in its memorandum of decision is taken from the defendants’ memorandum of law in support of the motion to strike. The trial court erroneously attributes the statement to the Harlach court, characterizing it as our Supreme Court’s holding in that case.

       The origins of this statement of the law can be traced to Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934). In Ursini, our Supreme Court described the duty of care an insurance broker owes to his or her client in ensuring that the client has proper insurance coverage as “a duty ... to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on [the insurance broker’s] part which defeats the insurance which he undertakes to secure will render him liable to [the client] for the resulting loss. . . . Where he undertakes to procure a policy affording protection against a designated risk, the law imposed upon [the insurance broker] an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default. The [client] may sue either for breach of the contract or in tort for breach of duty imposed by it.” (Citation omitted.) Id., 559-60; Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn. App. 560, 565, 952 A.2d 818 (quoting Ursini), cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
      In Todd v. Malafronte, 3 Conn. App. 16, 22, 484 A.2d 463 (1984), this court held that the duty of care described in Ursini applied to insurance agents as well as insurance brokers. In Dimeo v. Burns, Brooks & McNeil, Inc., supra, 6 Conn. App. 244-45, this court cited Todd in articulating the duty of care owed by an insurance agent to his or her client, determining that the trial court had properly charged the jury as to that duty where the jury considered the client’s claim that the agent negligently had failed to advise the client to purchase sufficient uninsured/underinsured motorist coverage.

       A reading of Dimeo undermines, as well, the defendants’ contention that the question of an insurance agent’s duty to advise a client to obtain coverage sufficient for the client’s individual circumstances, beyond the statutorily required minimum insurance, is an issue of first impression in Connecticut. We disagree with this contention and note that the centrally disputed issue in Dimeo was whether the insurance agent had advised the client to increase his uninsured/underinsured motorist coverage to match the amount of bodily injury liability coverage under the automobile insurance policy. Dimeo v. Burns, Brooks & McNeil, Inc., supra, 6 Conn. App. 242-43, 246. There was never a dispute as to the agent’s duty to advise the client of what would have constituted sufficient coverage. See id., 246 (“The plaintiff acknowledges that the court properly charged that the standard of care applicable to the defendants required that they explain underinsured motorist coverage, explain the consequences of having an insufficient amount of such coverage, recommend the proper amount, and offer that amount, which in this case would have been $300,000. . . . [Bjoth sides agreed that the applicable standard of care required that the defendants recommend and offer $300,000 of uninsured motorist coverage to the plaintiff.”).

       We reject the defendants’ argument that such a standard “threatens to put the entire insurance system at risk.” As is true with any claim for negligence, a client who brings an action against an insurance agent or insurance company for the agent’s negligent failure to advise the client of sufficient coverage or to recommend such coverage must prove each element of the claim — including the agent’s breach of the duty of care — in order to prevail. Evidence that the agent explained umnsured/underinsured motorist coverage to the client and recommended an adequate amount of coverage, based on the client’s individual circumstances, will satisfy the duty of care even where the client rejects the agent’s advice and purchases an insufficient amount of coverage. See Dimeo v. Burns, Brooks & McNeil, Inc., supra, 6 Conn. App. 244-45.
      In the present case, we conclude that the plaintiff’s allegations are sufficient to withstand the defendants’ motion to strike. In so doing, our analysis is confined to whether the facts alleged in the revised complaint, taken as true and in the light most favorable to sustaining their legal sufficiency, establish a cause of action for negligence. See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252-53. It is axiomatic, however, that the denial of a motion to strike does not conclude the litigation. To prevail on the merits, the plaintiff must prove the facts she has alleged.

       While we conclude that an insurance agent owes a duty to his or her client, in advising the client with respect to uninsured/underinsured motorist coverage, to explain undermsured/uninsured motorist coverage and the consequences of not having a sufficient amount of such coverage and to recommend the proper amount of coverage based upon the client’s individual circumstances; Dimeo v. Burns, Brooks & McNeil, Inc., supra, 6 Conn. App. 244-45; we note that the plaintiffs allegations, that Ortiz “advised” her to purchase a policy with particular uninsured/underinsured motorist coverage limits and “continued to advise and allow the [p]laintiff to renew the . . . policy in the same amounts,” if proven, could suffice to establish that Ortiz, having undertaken to advise the plaintiff, assumed a duty to act with reasonable care in so doing. See Weigold v. Patel, 81 Conn. App. 347, 360, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004).