text:
    Jules Silver v. Terry E. Barth et al.
    (8374)
    Spallone, O’Connell and Foti, Js.
    Argued January 31
    decision released February 8, 1990

      JohnR. Williams, with whom, on the brief, was Leslie R. Barth, for the appellant (named defendant).

      Irving H. Perlmutter, for the appellee (plaintiff).
   Per Curiam.

This appeal arises out of a foreclosure of a judgment lien against the named defendant Terry Barth. The defendant claims the court erred (1) in rendering judgment against the defendant without first holding a hearing in damages, (2) in rendering judgment without first acting on the defendant’s motion to reopen a default, and (3) in failing to open the default entered against the defendant.

After a plenary reivew of the record, transcripts and briefs, and after affording each claim of error the appropriate scope of review, we conclude that all claims are without merit. Schiavone v. Schiavone, 18 Conn. App. 825, 559 A.2d 1192 (1989).

There is no error.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Cromwell Commons Associates v. Kazimierz Koziura et al.
    (7664)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 9
    decision released March 6, 1990

      Thomas F. Brown, with whom were David M. Bohonnon and, on the brief, Mary Ann Barile, for the appellants (defendants).

      Michael J. Auger, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the trial court’s denial of their motion to open and vacate the judgment rendered. This matter previously came before this court in Cromwell Commons Associates v. Koziura, 17 Conn. App. 13, 549 A.2d 677 (1988). At that time, the case was remanded to the trial court for “an evidentiary hearing to determine whether any of the restrictions set out in [Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980)], barred the defendants from opening the judgment on the basis of fraud.” Id., 17.

The following facts are relevant to the disposition of this appeal. The plaintiff brought this action against the defendant Wieslaw Koziura for breach of a lease that was personally guaranteed by him. One year after the action was commenced, the defendants, who were represented by counsel throughout these proceedings, agreed to the court’s rendering a judgment, in accordance with a stipulation in favor of the plaintiff, in the amount of $50,000. The judgment was secured by the property of the defendant Kazimierz Koziura. Seven months after this judgment was rendered, the defendants moved to open and vacate the judgment, asserting that it had been fraudulently obtained. After the trial court denied these motions without an evidentiary hearing, the defendants appealed to this court claiming error. We concluded that because the defendants claimed fraud it was error for the trial court to deny the motions without an evidentiary hearing and remanded the case for further proceedings.

At the remand hearing, the trial court found the following facts. Some time during the late summer or the fall of 1985, the plaintiffs general partner, Benjamin Morris, informed the defendant Wieslaw Koziura that the shopping center that contained the leased premises was to be sold. Prior to the stipulated judgment, the plaintiff sold the shopping center and assigned the lease in question to the purchaser, Colonial Cromwell Commons Limited (Colonial). Shortly after the sale, Morris sent a written notice of sale to all of the tenants in the shopping center, including Wieslaw Koziura, informing them of the sale and advising them where to make future rental payments. At this time, Wieslaw Koziura asked Morris if he could be absolved of his liability under the lease. Morris referred him to Colonial.

At the time of sale, the plaintiff signed a lease guarantee agreement with Colonial, indemnifying Colonial for one year’s rent on all of the shopping center leases. Because the defendants were in default of their lease agreement, Morris discussed legal action against them with a representative of Colonial. The plaintiff and Colonial agreed to conduct a joint suit whereby the proceeds collected would first be applied to the expenses of collection, then to the plaintiff’s payments to Colonial pursuant to the indemnification agreement, and finally the balance would be paid to Colonial for the remaining period of the lease.

Suit was instituted in January, 1986, with negotiations following for the next eleven months. Counsel for the defendants discussed the interest of Colonial with counsel for the plaintiff and was satisfied that a settlement with the plaintiff would constitute a full and final settlement of both the plaintiffs interest and Colonial’s interest. Although the defendants’ attorney’s conversation concerning the respective interests of the plaintiff and Colonial may have come subsequent to the stipulated judgment, it was not more than six to eight weeks thereafter. After the stipulated judgment was rendered, the defendants failed to make any payments in accordance with the terms of that judgment and a foreclosure action against the property securing the judgment was commenced.

The motion to open and vacate was not filed until seven months after the stipulated judgment was rendered, and was based on the defendants’ claimed lack of knowledge of the sale of the shopping center, which they allege was fraudulently withheld by the plaintiff.

After a thorough review of the record before us, we conclude that the trial court clearly considered the restrictions set out in Varley v. Varley, supra, and properly concluded, on the basis of the facts found by it, that even if the defendants were not barred by laches or lack of due diligence from prevailing on their motion to open judgment, their claim is barred in that there was no clear proof of fraud, and they failed to demonstrate that if a new trial were granted the result would be different.

As the appellants, the defendants have the burden of showing that there was error in the judgment from which the appeal was taken. Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 517, 506 A.2d 169 (1986).

On appeal, the defendants claim five grounds of error that attack either the factual findings of the court or its exercise of discretion. We will not retry the case. Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986). Our review of the record fails to disclose that the factual findings of the court were clearly erroneous in view of the pleadings and evidence before it, or that the decision was otherwise erroneous in law; Practice Book § 4061; or is unsupported by the evidence. Branigan v. Cohen, 3 Conn. App. 580, 581, 490 A.2d 1019 (1985). On appeal, rulings involving the court’s discretion will be disturbed only upon a showing of a clear abuse of that discretion. Leech v. Rozbicki, 17 Conn. App. 352, 353, 552 A.2d 451 (1989). Our review of the record indicates that the court acted within its broad discretion.

After affording the claims of error the appropriate scope of review, we conclude that the defendants have not met their burden. Coles v. Coles, 17 Conn. App. 831, 832, 553 A.2d 1169 (1989).

There is no error.

In this opinion the other judges concurred.

       Additional facts can be found in Cromwell Commons Associates v. Koziura, 17 Conn. App. 13, 549 A.2d 677 (1988).

       Kazimierz Koziura, father of Wieslaw Koziura, was named as a defendant because the plaintiff alleged that the latter transferred his interest in a mortgage to his father to avoid the plaintiff’s debt, and that the father also held title to certain real property in trust for his son.


author: Spallone, J.

text:
    Susan R. Curzi v. Kenneth J. Curzi
    (7663)
    Spallone, Daly and Norcott, Js.
    Argued January 2
    decision released March 6, 1990

      Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellant (defendant).

      Mark M. Wrenn, with whom was James P. Caulfield, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the trial court’s denial of his motion to modify the orders of alimony and child support entered in the judgment for the dissolution of his marriage. The defendant claims that the trial court erred (1) in failing to find a significant change in circumstances justifying a modification of the alimony and support orders, and (2) in finding that the maintenance orders contemplated full-time employment for the plaintiff and, therefore, precluded modification. We find no error.

On July 25,1988, the trial court rendered judgment dissolving the parties’ eight year marriage. After a contested hearing, the plaintiff was granted custody of the parties’ two minor daughters and was granted exclusive possession of the jointly owned marital residence. At the time of dissolution, the plaintiff worked part-time as a waitress. Her weekly net income from earnings was $109 and her weekly expenses exceeded $565. The defendant, a high school teacher, had a weekly net income of $523.16 and weekly expenses of $507.78. In its dissolution judgment, the court ordered the defendant to pay $85 per week per child for their support and $35 per week as alimony, for a total weekly maintenance contribution of $205. The court also ordered him to pay a portion of the parties’ outstanding debts and to pay approximately $140 per week for the mortgage and real estate taxes on the marital home.

In November, 1988, the defendant moved to modify the maintenance orders, claiming a substantial change in the plaintiff’s circumstances. Following the divorce, she had obtained employment as a high school teacher and her weekly net income had risen to $276.69. The court denied the defendant’s motion and this appeal followed.

Pursuant to General Statutes § 46b-86 (a), which was revised by Public Acts 1987, No. 87-104, a trial court may modify the financial orders of a judgment of dissolution entered after October 1,1987, “upon a showing of [a] substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.” See Darak v. Darak, 210 Conn. 462, 465, 556 A.2d 145 (1989); Albrecht v. Albrecht, 19 Conn. App. 146, 155-56, 562 A.2d 528 (1989). Great weight will be given trial court rulings on financial orders in family matters and every consideration must be given in their support. Darak v. Darak, supra, 475. We will not reverse such a ruling unless the appellant demonstrates that the court has misapplied the law or could not reasonably have reached its conclusions. Roach v. Roach, 20 Conn. App. 500, 505, 568 A.2d 1037 (1990); Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989).

The defendant first claims that the court could not have reasonably denied his motion for modification. We disagree. The record, including the parties’ financial affidavits, documents the relative financial positions of the parties. Prior to the dissolution, the plaintiff’s expenses exceeded her income by approximately $406 per week. The financial orders of the dissolution left both parties with more expenses than income. After the divorce, the plaintiff’s weekly shortfall was approximately $112, and the defendant’s was approximately $240. The defendant did not appeal these orders, and the fairness of this distribution of resources is not in issue.

By November, 1988, the plaintiff’s weekly employment income had increased 150 percent. The parties dispute the amount of the plaintiff’s weekly expenses, but, even using the defendant’s estimate, the plaintiff’s increased expenses exceeded her increased income by approximately $122 per week. Because the defendant’s income had marginally increased and his expenses had decreased, his weekly shortfall was approximately $212.

The plaintiff, despite her full-time employment, has not enjoyed a significant improvement in her finances. After reviewing all the evidence, the trial court found that “there has been no substantial change in circumstances which would lead to a . . . reconsideration of the statutory criteria” so as to justify a modification of the defendant’s financial obligations. The record here amply supports this finding, and we are not persuaded that the court abused its discretion in denying the defendant’s motion to modify the judgment as to support and alimony.

The defendant next claims that the court erred in finding that the judgment of dissolution precluded future modification of alimony and support orders based on an increase in the plaintiff’s income. He argues, in effect, that the court denied his motion for modification on an erroneous conclusion that the dissolution judgment contemplated that the plaintiff soon would be fully employed. Our review of the record reveals no basis for the defendant’s claim.

Upon a motion for modification, the court first considers whether there has been a substantial change in circumstances. Only if such a change is found may the party resisting the modification claim that the change was contemplated at the original judgment. Darak v. Darak, supra, 470. The court here expressly based its ruling on a finding of no substantial change in circumstances. The court, therefore, correctly ended its review. Notwithstanding the defendant’s claims, there is nothing in the record indicating that the court considered and reached a conclusion as to whether the plaintiff’s future employment was anticipated at dissolution.

There is no error.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    William Love v. J. P. Stevens and Company, Inc., et al.
    (7588)
    Spallone, Daly and O’Connell, Js.

      Argued October 12, 1989
    decision released March 6, 1990

      JohnM. Creane, with whom, on the brief, was Jamie L. Mills, for the appellant (plaintiff).

      Kevin J. Maher, with whom, on the brief, was Colette Mauborgne, for the appellees (defendants).
   O’Connell, J.

This is an appeal from a decision of the workers’ compensation review division holding that the defendants, an employer and its insurance company, are entitled to a credit equal to the plaintiff’s recovery from a third party tortfeasor for injuries resulting from an industrial accident.

The facts are not in dispute. On March 22,1979, the plaintiff suffered a severe and disabling injury to his right, master hand. He immediately underwent emergency surgery and reconstructive surgery some months later. The plaintiff filed a timely claim for workers’ compensation. The commissioner found that he had suffered 100 percent disability of his right hand and awarded him compensation payments totalling $48,011.92. Thereafter, a specialist in reconstructive hand surgery evaluated the plaintiff’s condition and recommended that further surgery, estimated to cost a maximum of $40,000, be performed in an attempt to give the plaintiff increased use of his injured hand. A hearing was held on the question of whether the defendants should pay for this surgery, and in a finding and award, dated October 14,1981, the workers’ compensation commissioner found that additional surgery was reasonable and necessary and ordered that the defendants provide such treatment. To date, the surgery has not been performed.

While the workers’ compensation proceedings were pending before the commissioner, the plaintiff filed a third party action against the manufacturer of the machine that he was operating at the time of his injury. The defendants intervened as parties plaintiff pursuant to General Statutes § 31-293 (a). The case was settled on January 8, 1982, for $250,000 under the terms of a court approved stipulated judgment. After costs and fees were subtracted, the defendants received $48,011.92 as reimbursement for payments made under the workers’ compensation statutes. The balance of $118,654.75 was awarded to the plaintiff. At no time prior to the entry of the stipulated judgment did the defendants seek, from the third party, reimbursement of future expenses. Instead, when the stipulated judgment was rendered, the defendants stated only that they reserved their rights to reimbursement for future benefits under § 31-293 (a).

Thereafter, the defendants filed a motion for credit with the workers’ compensation commissioner claiming that the plaintiff’s recovery should be applied toward his future medical expenses. They argued that they should not be obligated to make further compensation payments until such time as the plaintiff incurred expenses exceeding his third party recovery. The plaintiff opposed the motion on the ground that the commissioner had no authority to grant such a credit. The commissioner granted the motion and ordered the plaintiff to pay the defendants $1990.24 as reimbursement for compensation payments made after the settlement of the third party claim. The commissioner then granted the defendants a credit of $116,664.51, an amount equal to the plaintiffs net recovery. The compensation review division affirmed the award on November 10, 1988, and this appeal followed.

The plaintiffs claims of error are all subsumed under the single issue of whether a workers’ compensation commissioner has the authority to award a credit in the amount of a worker’s net recovery from a third party tortfeasor, thereby relieving the employer of its obligations under the workers’ compensation statutes until such a time as the worker’s expenses related to the injury exceed that credit. We conclude that the commissioner has no such authority. Accordingly, we find error.

In reaching this conclusion, we are guided by General Statutes § 31-293 (a), which preserves the right of an injured worker and an employer to recover damages from one responsible for an injury compensable under the workers’ compensation statutes. Section 31-293 (a) provides that where an employer joins an employee in an action against a third party, the employer’s claim “shall take precedence over that of the injured employee.” Thus, the “statute gives to an employer the substantive right to reimbursement of the workmen’s compensation which he has become obligated to pay.” Stavola v. Palmer, 136 Conn. 670, 677, 73 A.2d 831 (1950). The statute defines the employer’s claim as “(1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” General Statutes § 31-293 (a). It is only when the amount received from the third party exceeds the employer’s claim that the employee receives anything. Id.

Section 31-293 is the exclusive route for an employer to assert a claim over any portion of an. employee’s recovery from a third party. In Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); our Supreme Court held that an employer must strictly comply with the procedures of § 31-293 (a). In that case, the employer failed to follow the statutory mandate and, as a result, “any right of the [employer] to the [employee’s] third party recovery, including the alleged right to credit that recovery against future liability, was extinguished.” Id., 489-90. We must likewise determine whether the defendants here have waived their rights to any further portion of the plaintiff’s third party recovery.

An examination of the workers’ compensation statutes of other jurisdictions discloses that some provide for the type of credit that the defendants now seek. See, e.g., Kan. Stat. Ann. § 44-504 (b); N.Y. Workmen’s Compensation Law § 29 (3) (McKinney 1965). Statutes of other states deal with the future expenses in the same manner as Connecticut’s statute. See Or. Rev. Stat. § 656.593. The Oregon statute is quite like our own, and the Oregon Court of Appeals addressed the same question we now face in its decision in State Accident Ins. Fund Corporation v. Parker, 61 Or. App. 47, 656 P.2d 335 (1982). In Parker, a worker, who had been injured in an industrial accident, successfully recovered against a third party tortfeasor. When allocating the recovery between itself and the worker, the compensation insurer properly deducted attorney’s fees and costs incurred in pursuing the claim as well as an amount equal to the workers’ compensation payments made up to that date. The insurer did not exercise its right to retain any funds to cover future medical expenses. Id., 49-50.

The Parker court held that the insurance company’s failure to retain any of the proceeds to cover future expenses amounted to a waiver of any further claims on the recovery. Id., 55. The goal of the statute, the court said, was to afford both the employer and the employee some benefit from a third party recovery and not to enable the employer or its insurance company to escape their continuing obligations under the workers’ compensation law. Id., 53. Allowing a credit to the insurer would be inconsistent with the worker’s right to a final determination as to his share of the recovery.

This reasoning is persuasive. Connecticut’s statute, as does Oregon’s, imposes a continuing obligation on the employer to make payments as ordered by the compensation commissioner, even after recovery from a third party. Also, both statutes have been interpreted as providing the sole means available to an employer or insurer to secure a share of an employee’s third party recovery. See Skitromo v. Meriden Yellow Cab Co., supra; State Accident Ins. Fund Corporation v. Parker, supra.

In support of its decision that the defendants are entitled to a credit, the compensation review division relied in part on 2A A. Larson, Workmen’s Compensation Law (1988) § 74.31 (e). Professor Larson recognizes that credit for future expenses may be a problem and that certain statutes, such as that of New York, contain provisions allowing for credits for future expenses. The review division based its decision on Larson’s additional point that where a statute is silent as to future expenses, a credit should nonetheless be granted. We disagree with the review division’s reasoning because it violates the basic principle that a statute should be construed so that no word or clause is rendered meaningless. Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 424, 567 A.2d 1250 (1989).

If we were to approve the review division’s approach, we would contradict both the plain language of the statute and the status of § 31-293 as the sole means of employer recovery. Our legislature has chosen not to provide for a credit, but has instead set out an alternative mechanism for employer recovery of future expenditures. Section 31-293 (a) directs that the employer deduct from the third party recovery an amount equal to payments already made plus “an amount equal to the present worth of any probable future payments which he has by award become obligated to pay . . . .”

We also note that § 31-278, which sets out the powers of the workers’ compensation commissioners, does not confer the authority to award a credit. The compensation review division, despite the absence of statutory or case law authority, found support for its action in one of its own decisions. Conrad v. Haggerty Pool Service, 3 Conn. Workers’ Comp. Rev. Op. 96 (1986). The defendants urge that that decision, together with other cases from the review division, supports the commissioner’s authority to award the credit. It is fundamental administrative law that courts will accord great deference to the construction given a statute by the agency charged with its enforcement. U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 216-17, 545 A.2d 565 (1988). This principle, however, is limited to cases where the statute is ambiguous. Breen v. Department of Liquor Control, 2 Conn. App. 628, 634, 481 A.2d 755 (1984). Such is not the case here, and the review division may not ignore the plain language of the statute.

We note that the same passage of § 31-293 (a) contains the relevant references to both the defendants’ recovery for past expenditures and for the present value of probable future payments. This clearly indicates that if an employer wishes to recover for future expenditures, it must assert a claim before the action against the third party terminates. Failure to do so will result in the claim being waived. Skitromo v. Meriden Yellow Cab Co., supra, 489-90. An administrative agency cannot increase its statutory authority by the simple act of relying on its own prior, arguably incorrect, decisions concerning that authority.

The defendants’ argument also fails to recognize that the third party recovery is, in part, payment for damages compensable under the Workers’ Compensation Act and, in part, compensation for pain and suffering. Injured employees therefore bring suit against third party tortfeasors in order to recover more than that to which they are entitled under workers’ compensation law.

The stipulated judgment did not specify what portion of the award represented reimbursement for payments made by the defendants under the workers’ compensation law and what portion represented compensation to the plaintiff for pain and suffering. The review division’s decision effectively erased this distinction and treated the entire award as if it represented past and future obligations of the defendants under the act. We cannot accept this interpretation. An equally strong argument can be made that the plaintiff’s share of the recovery was intended to represent compensation for pain and suffering. This interpretation is consistent with the firmly established principle that workers’ compensation issues are to be liberally construed in favor of the employee. English v. Manchester, 175 Conn. 392, 397-98, 399 A.2d 1266 (1978).

Moreover, the defendants have no right, either by statute or by common law, to reduce future payments owed to the plaintiff. Skitromo v. Meriden Yellow Cab Co., supra, 489; Norwalk v. Van Dyke, 33 Conn. Sup. 661, 666, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976). In fact, the statute expressly states that recovery from a third party does not terminate an employer’s obligations to make payments ordered by the commissioner. General Statutes § 31-293 (a). Because, at the time of the stipulated judgment, the defendants failed to preserve their claim for anything beyond the maximum estimated $40,000 cost of the future surgery, the defendants forever lost their opportunity for additional recovery. Accordingly, we conclude that the defendants are entitled to a credit of $40,000 toward future medical expenses. The $78,674 balance of the third party recovery is not subject to any credit in favor of the defendants.

There is error, the decision is set aside and the case is remanded to the workers’ compensation review division for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-293 (a) provides: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, Ms right of action against such third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word ‘compensation’, as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one-thousand-dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.”

       Kansas Statutes Annotated § 44-504 (b) provides in pertinent part: “In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker’s dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid.”
      The New York workers’ compensation law provides: “In the event of a modification of an award increasing the compensation previously awarded or in the event that the total amount of periodical payments made pursuant to an award under which the number of such payments could not be determined at the time of the award, shall exceed the total thereof as estimated by the board, the principal of any of such excess recovery theretofore paid to such injured employee or his dependents shall be credited against such increase or such excess. In the event of a modification of an award ending or diminishing the compensation previously awarded or in the event that the total amount of periodical payments made pursuant to an award under which the number of such payments could not be determined at the time of the award, shall be less than the total thereof as estimated by the board, such fund, person, association, corporation or carrier shall forthwith pay to such injured employee or his dependents, as the case may be, any additional amount of such excess recovery to which such injured employee or his dependents may be entitled by reason of such modification or such deficiency, determined as hereinbefore provided.”
      N.Y. Workmen’s Compensation Law § 29 (3) (McKinney 1965).

       Oregon Revised Statutes § 656.593 provides in pertinent part: “(1) If the worker or the beneficiaries of the worker elect to recover damages from the employer or third person, notice of such election shall be given the paying agency by personal service or by registered or certified mail. The paying agency likewise shall be given notice of the name of the court in which such action is brought, and a return showing service of such notice on the paying agency shall be filed with the clerk of the court but shall not be a part of the record except to give notice to the defendant of the lien of the paying agency, as provided in this section. The proceeds of any damages recovered from an employer or third person by the worker or beneficiaries shall be subject to a lien of the paying agency for its share of the proceeds as set forth in this section and the total proceeds shall be distributed as follows: “(a) Costs and attorney fees incurred shall be paid, such attorney fees in no event to exceed the advisory schedule of fees established by the board for such actions.
      “(b) The worker or the beneficiaries of the worker shall receive at least 33-1/3 percent of the balance of such recovery.
      “(c) The paying agency shall be paid and retain the balance of the recovery, but only to the extent that it is compensated for its expenditures for compensation, first aid or other medical, surgical or hospital service, and for the present value of its reasonably to be expected future expenditures for compensation and other costs of the worker’s claim under ORS 656.001 to 656.794. Such other costs include assessments for reserves in the Insurance and Finance fund, but do not include any compensation which may become payable under ORS 656.273 or 656.278.
      “(d) The balance of the recovery shall be paid to the worker or the beneficiaries of the worker forthwith. Any conflict as to the amount of the balance which may be retained by the paying agency shall be resolved by the board.
      “(2) The amount retained by the worker or the beneficiaries of the worker shall be in addition to the compensation or other benefits to which such worker or beneficiaries are entitled under ORS 656.001 to 656.794.”


author: Norcott, J.

text:
    Michael Gedeon v. First National Supermarkets, Inc.
    (7706)
    Daly, Norcott and Foti, Js.
    Argued December 14, 1989
    decision released March 13, 1990

      Sydney T. Schulman, with whom, on the brief, was Kenneth J. Speyer, for the appellant (plaintiff).

      Jeffrey J. Mirman, with whom, on the brief, was Peter Schwartz, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals following the trial court’s granting of the defendant’s motion for a judgment notwithstanding the verdict. The trial court based its ruling on its finding that the principal employer defense barred this action and limited the plaintiff’s recovery to that provided by the Workers’ Compensation Act. General Statutes § 31-275 et seq. The plaintiff claims that the trial court abused its discretion in granting the defendant’s motion for judgment notwithstanding the verdict because the jury could reasonably have found that the principal employer defense did not apply and could, therefore, reasonably have returned a plaintiff’s verdict. We find no error.

The jury could reasonably have found the following facts. Leaseway Transportation, Inc. (Leaseway) is in the business of leasing, supervising, maintaining and repairing tractor-trailer trucks. The defendant, First National Supermarkets (Finast), is a regional supermarket chain. Leaseway and the defendant entered into a lease-service agreement in the summer of 1982. Before entering into this contract, the defendant used its own trucks to transport its products to the various stores in its chain. Until the commencement of this contract, the plaintiff was employed by the defendant at the defendant’s Windsor Locks plant as a mechanic responsible for refueling, repairing and servicing the trucks. Once the defendant entered into its contract with Leaseway, the plaintiff became an employee of Leaseway, performing the same duties as before.

On December 6, 1983, during the early morning hours, the plaintiff slipped on ice and fell while walking with his supervisor across the parking lot near the maintenance garage. It had snowed from December 2 through December 4, for a total accumulation of approximately three inches. On December 5, it rained, and overnight the temperature dropped below freezing. The plaintiff had informed his supervisor of the slippery conditions. At the time of the plaintiffs fall, it was misting, and there was a “thin ice” upon which the plaintiff fell.

The defendant moved for a directed verdict claiming that the plaintiff had not proven notice of the specific defect. It also claimed that the action against the defendant was barred by the principal employer defense because the defendant controlled the situs of the fall and because the plaintiffs work is part or process of the defendant’s business. The court reserved judgment on that motion and submitted the case to the jury. The jury returned a verdict for the plaintiff for $74,211.33 and answered three special interrogatories. In order to determine whether the principal employer defense applied, the jury was asked: (1) Did the defendant prove, by a preponderance of the evidence, that the relation of principal employer and contractor existed between the defendant and Leaseway in work done wholly or in part for the defendant Finast? (2) Did the defendant prove, by a preponderance of the evidence, that the plaintiff’s fall occurred on premises controlled by the defendant Finast? (3) Did the defendant prove, by a preponderance of the evidence, that the work performed by Leaseway was a part or process in the trade or business of the defendant Finast? If the jury answered all three in the affirmative, the action would be barred. The court directed the jury to answer yes to the first question, and the jury answered no to the second and third questions.

The defendant filed a motion to set aside the verdict and for judgment in accordance with the motion for a directed verdict. On December 20, 1988, the trial court granted the defendant’s posttrial motions and rendered judgment for the defendant. The plaintiff then filed this appeal.

The plaintiff claims on appeal that the trial court erred in granting a judgment notwithstanding the verdict because the jury could have properly found (1) that the defendant had notice of the defect, (2) that the work performed by the plaintiff was not part or process of the defendant’s business, and (3) that the plaintiff did not work on premises controlled by the defendant for purposes of the principal employer defense. The plaintiff also claims that the jury’s finding of lack of control for the principal employer defense is not inconsistent with a finding that responsibility existed for civil liability purposes. We find no error.

This court must review the action of the trial court in the light most favorable to the plaintiff. Brown v. K.N.D. Corporation, 205 Conn. 8, 16 n.5, 529 A.2d 1292 (1987); Bartholomew v. Catania, 161 Conn. 130, 132, 285 A.2d 350 (1971). Motions to remove the verdict from the jury “ ‘are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion.’ ” Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). “ ‘If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence.’ ” Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 659-60, 154 A.2d 517 (1959); see also Brown v. K.N.D. Corporation, supra.

We first address the plaintiffs claim that the trial court erred in setting aside the plaintiff’s verdict on the ground that the jury could reasonably have found only that the action against the defendant was barred by the principal employer defense. “It is, of course, well settled that where there exists the relationship of employer and employee within the Workmen’s Compensation Act the employee may recover for injuries sustained in the course of his employment only as provided by the act. The employer has no common-law liability to his employee.” Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950). “The principal employer defense requires that three elements must be satisfied: (1) The relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; and (3) the work must be a part or process in the trade or business of the principal employer.” (Footnote added.) Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 72, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). Each of these elements ordinarily constitutes a question of fact to be determined by the jury. Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 136, 157 A. 860 (1932); see also Alpha Crane Service, Inc. v. Capitol Crane Co., supra. Only where the evidence permits “no real dispute as to the existence of these conditions,” can a verdict be directed. See Alpha Crane Service, Inc. v. Capitol Crane Co., supra.

The jury heard testimony that the plaintiff performed the same work as a Leaseway employee that he had as a Finast employee; he repaired, refueled and maintained the trucks. The Leaseway trucks were leased to and used by Finast to carry its freight from the distribution center to its stores. Some trucks displayed the Finast logo while some displayed the Leaseway logo. This activity all took place at the Finast Windsor Locks plant. The plant consisted of offices for the various business departments, including accounting and legal departments, a distribution warehouse, and a maintainance and repair garage, which was leased to and used by Leaseway to service the trucks. Leaseway leased specified areas within which to perform its maintenance services, but the maintenance of these areas was the responsibility of Finast. Leaseway paid rent for the space that it leased from Finast, and, hence, a landlord-tenant relationship existed between the two companies. Finast could not enter these specified areas at will. Leaseway paid for its own utilities and was required to carry its own liability insurance.

If anything needed to be repaired, either inside the maintenance garage or outside on the plant facilities, Finast was responsible for the repairs, but Leaseway would perform routine repairs on its leased areas. Finast did not exercise any supervisory control over Leaseway employees and had no authority to direct hiring, firing or discipline of those employees. All of the Leaseway equipment was its own. All of the services performed by Leaseway took place in the areas leased by Leaseway from Finast. Leaseway was authorized under the contract, however, to perform, its services in other facilities away from these premises if it so chose. The drivers were employed by Finast, and Finast agreed to reimburse Leaseway if any damage was done to the Leaseway trucks. Leaseway had the authority, if a driver were to abuse the truck, to direct Finast to remove him from his position as a truck driver. Finast was responsible for plowing, sanding and salting all of the outside areas of the plant including the area leased to Leaseway.

The jury found, by means of special interrogatories, that the plaintiffs work was not part or process of Finasf s business and that Finast did not control the work premises of the plaintiff for the purposes of the principal employer defense, and it returned a general verdict for the plaintiff. “The jury’s verdict must stand ‘ “if [it is] one at which honest men acting fairly and intelligently might arrive reasonably . . . even though the opinion of the trial court and this court be that a different result should have been reached.” . . .’ ” (Citations omitted.) Alpha Crane Service, Inc. v. Capitol Crane Co., supra, 66.

In granting the motion for judgment notwithstanding the verdict, the trial court correctly held that the work performed by the plaintiff was “part or process” of the defendant’s trade or business, and that the jury could not reasonably have found otherwise. This condition includes “all those operations which enter directly into the successful performance of the commercial function of the principal employer. If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees in the prosecution of his business, it is a part or process in his business.” Crisanti v. Cremo Brewing Co., supra, 532; Ranta v. Bethlehem Steel Corporation, 271 F. Sup. 286, 288 (D. Conn. 1967). This condition is not limited to main tasks performed in the principal employer’s business, but rather, includes those tasks that are necessary to the routine functioning of a business. King v. Palmer, 129 Conn. 636, 641, 30 A.2d 549 (1943).

In addressing the issue of control of the premises, the trial court found that the jury could not have reasonably found anything other than that the defendant controlled the work areas of the fall for purposes of the principal employer defense. The area in the principal employer’s control, in the context of this defense, is “the area in which an accident must happen in a more inclusive way than by use of phrases such as ‘in his possession’ or ‘owned by him.’ ” Ranta v. Bethlehem Steel Corporation, supra, 289. Control of the work area of the plaintiff is the relevant consideration. Alpha Crane Service, Inc. v. Capitol Crane Co., supra, 74. “The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident.” Crisanti v. Cremo Brewing Co., supra, 535. “ ‘In general, to have “control” of a place is to have the authority to manage, direct, superintend, restrict or regulate.’ ” Mancini v. Bureau of Public Works, 167 Conn. 189, 198, 355 A.2d 32 (1974). At the time of the accident, the plaintiff must have been working “ ‘ “on or in or about” ’ ” premises controlled by the principal employer. Crisanti v. Cremo Brewing Co., supra; see also Bates v. Connecticut Power Co., 130 Conn. 256, 260, 33 A.2d 342 (1943). “The word ‘about’ being held to be equivalent at best to ‘in close proximity to.’ ” Wilson v. Largay Brewing Co., 125 Conn. 109, 112, 3 A.2d 668 (1939).

The purpose for this requirement is that “ ‘[m]ost compensable injuries are due to conditions of employment the danger from which could be prevented or minimized by sufficient oversight-or control. The underlying purpose of the restriction as to the place of employment . . . was obviously to limit liability [under the Workers’ Compensation Act] to those situations where such conditions might be assumed to be largely within the control or observation of the principal employer.’ ” Crisanti v. Cremo Brewing Co., supra; Wilson v. Largay Brewing Co., supra. “The idea behind these limitations was that to hold the principal employer responsible [under the Workers’ Compensation Act] the work must have been largely within his control or observation.” Bates v. Connecticut Power Co., supra, 259.

In this case, there was no question that Leaseway’s facilities were located in the Finast distribution plant, that Finast was responsible for the control of the entire plant, exclusive of the building used by Leaseway to repair and maintain the vehicles, and that Finast was responsible for snow removal. The jury could have reasonably concluded only that when the plaintiff fell, he was working “on or in or about” premises controlled by the defendant.

The trial court was therefore correct in rendering judgment notwithstanding the verdict and limiting the plaintiff’s relief to recovery under the Workers’ Compensation Act.

There is no error.

In this opinion the other judges concurred.

       The plaintiff does not challenge the trial court’s direction to the jury that it must answer this first question in the affirmative. There is no question that this condition was met. “[T]he contention of the hired general contractor that it is the principal employer is usually unchallenged.” Ranta v. Bethlehem Steel Corporation, 271 F. Sup. 286, 289 (D. Conn. 1967).

        King v. Palmer, 129 Conn. 636, 641-42, 30 A.2d 549 (1943), is the leading case defining the term “part or process.” That case sets up the distinction between acts that constitute part or process and acts that do not, based on whether the acts constitute temporary maintenance or major replacement.

       Because we conclude that the trial court was correct in finding that the plaintiff’s action was barred by the principal employer defense, we need not address the plaintiff’s other claims.


author: Per Curiam.

text:
    AFSCME, Council 15, Local 1159, et al. v. City of Bridgeport
    (7847)
    Dupont, C. J., Borden and Foti, Js.
    Submitted on briefs November 9, 1989
    decision released March 13, 1990

      Gary A. Mastronardi filed a brief for the appellant (plaintiff Rudolph P. Kurowski).

      Thomas K. Jackson, associate city attorney, filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff Rudolph P. Kurowski appeals from the judgment rendered denying his application to vacate an arbitration award and granting the defendant’s application for an order confirming the award. Kurowski claims that the trial court erred in confirming the arbitration award. We find no error.

The trial court, in a well reasoned memorandum of decision, found the following facts. The arbitration proceedings in question arose pursuant to a pension agreement between the defendant and the plaintiff union, the collective bargaining agent for Kurowski, a police officer. On July 13, 1982, Kurowski’s application for a disability pension under § 2E of the pension agreement was denied by the board of police commissioners.

On November 5,1982, in a separate proceeding, the workers’ compensation commissioner for the fourth district issued a finding and award in favor of Kurowski pursuant to General Statutes § 7-433c for temporary total disability benefits from April 13,1981, to November 30,1981. The commissioner further noted that medical examinations of the plaintiff revealed that in May, 1982, he had essential hypertension and should not return to police duties. On November 20, 1987, after a hearing de novo, the board of arbitration and mediation again denied Kurowski’s application for a disability, finding that there was no credible evidence that he was disabled from the performance of his police duties.

At the heart of Kurowski’s appeal is his assertion that the arbitrator exceeded his authority when he denied Kurowski’s application for disability benefits (1) by failing to follow the dictates of General Statutes § 7-433c, and (2) by violating the doctrine of collateral estoppel in light of the workers’ compensation commissioner’s award. These claims do not, however, provide a proper foundation to support Kurowski’s challenge of the arbitrator’s authority.

The court’s scope of review of an arbitrator’s power to make an award is limited. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981). “Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by an agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.” (Citations omitted.) Id., 583-84.

The issue submitted to the arbitration panel here was: “Did the Board of Police Commissioners of the City of Bridgeport err in denying pension benefits to Officer Rudolph Kurowski? If so, what shall the remedy be?” The trial court ruled that the award conformed to the submission and that even if the arbitrators committed errors of law, such errors are not reviewable. We agree.

“Unless the submission provides otherwise, an arbitrator has authority to decide factual and legal questions, and courts will not review the evidence, or, where the submission is unrestricted, the arbitrator’s determination of legal questions.” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 153-54, 523 A.2d 1271 (1987).

Here, the submission contained no conditional language restricting the powers of the arbitrator, and it must therefore be classified as an unrestricted submission. Id. This classification left the arbitrator to determine the legal questions. Since the award here conformed to the submission, the plaintiffs claim that the arbitrator exceeded his powers is without merit.

There is no error.

       The plaintiffs are AFSCME, Council 15, Local 1159, and Rudolph P. Kurowski. The appeal is brought by Rudolph P. Kurowski only.
      The question of Kurowski’s standing to appeal was raised by this court, and at our request the parties filed simultaneous briefs addressed to the issue of whether the collective bargaining agreement between AFSCME, Council 15, Local 1159, and the city of Bridgeport provided for a personal right of the employee to seek arbitration. See Flynn v. Newington, 2 Conn. App. 230, 477 A.2d 1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984); Housing Authority v. Local 1161, 1 Conn. App. 154, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).
      We conclude that the plaintiff has standing to seek to vacate the arbitral decision at issue. Section (7) of the pension certificate, which is part of the pension agreement, provides: “In the event you and/or your dependents do not receive the benefits promised and guaranteed by this pension certificate, you and/or your dependents may: . . . (b) Initiate the grievance and arbitration procedure of the applicable collective bargaining agreement between the City of Bridgeport and Bridgeport Police Local 1159.” (Emphasis added.)
      The collective bargaining agreement was incorporated into and made part of the pension agreement. Thus, each individual covered by the pension agreement maintained a personal right to the grievance and arbitration procedures of the collective bargaining agreement.

       Section 2E of the pension agreement provides in relevant part that an employee is entitled to retirement benefits if he “shall have become permanently disabled for the performance of his duties by reason of mental or physical disability resulting from injury received or exposure endured in the performance of his duty . . .


text:
    David J. Wheeler v. George Polasek et al.
    (7940)
    Daly, Norcott and Foti, Js.
    Argued December 13, 1989
    decision released March 13, 1990

      Richard G. Kent, for the appellant (plaintiff).

      Nathan C. Nasser, with whom, on the brief, was Daniel B. Glass, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the trial court’s discharge of a notice of lis pendens that he filed in the Bridgeport land records on real property owned by the defendant Elmwood-1250 Associates Limited Partnership. The plaintiff claims that the trial court erred when it found that his claim did not affect real property within the meaning of General Statutes § 52-325. We find no error.

The plaintiff and the named defendant, George Polasek, are general partners in the defendant limited partnership. This action was brought by the plaintiff for an accounting of partnership assets, breach of fiduciary duty, damages for management fees and damages for misrepresentation under the Connecticut Uniform Securities Act, the Securities Act of 1933, and the Securities Exchange Act of 1934.

At the time this action was commenced the plaintiff filed a notice of lis pendens on real property owned by the defendant partnership. The defendants moved to discharge this notice, arguing that a notice of lis pen-dens was inappropriate here because the plaintiffs claims did hot satisfy the criteria of the lis pendens statute. The trial court granted the defendants’ motion, and found, in its concise and well reasoned decision, that the suit did not affect real property within the meaning of § 52-325. We agree.

Section 52-325 (a) allows a party to place a notice of lis pendens on the land records when “the action is intended to affect real property.” Section 52-325 (b) specifies that in order for an action to affect real property, its purpose or outcome must determine the rights of the parties in or to the particular real property, or it must establish or enforce previously acquired interests in it.

The claims set forth in the plaintiffs complaint are claims against the partnership itself and are based on the Uniform Partnership Act, as found in General Statutes § 34-39 et seq. Although the plaintiff claims that he has a realty interest in the partnership’s property and a consequent right to secure that interest with a notice of lis pendens, his claim must fail. As specified by the Uniform Partnership Act, a partnership interest is personal property; General Statutes § 34-64; and the partnership realty is considered personalty with respect to any individual partner’s rights therein. See Royce Shopping Centers, Inc. v. Putnam Shopping Center Associates, United States District Court, District of Connecticut, Docket No. H-78-538 (March 6, 1979); Bretarm Investment Associates v. Previdini, Superior Court, judicial district of New Haven, Docket No. 266724 (January 20,1989). It is axiomatic, therefore, that none of the plaintiff’s claims affects the real property of the partnership within the meaning of § 52-325.

The plaintiff’s interest as a partner in this limited partnership is a personalty interest; the suit does not affect real property within the meaning of § 52-325.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-325 provides in pertinent part: “(a) In any action in a court of this state ... (1) the plaintiff or his attorney ... if the action is intended to affect real property, may cause to be recorded in the office of the town clerk of each town in which the property is situated a notice of lis pendens . . . .”

       General Statutes § 52-325 provides: “(b) As used in this section, actions ‘intended to affect real property’ means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property; (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property; (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.”

        Bretarm Investment Associates v. Previdini, Superior Court, judicial district of New Haven, Docket No. 266724, eventually resulted in a judgment of nonsuit being rendered against the plaintiff on January 20,1989. The case was withdrawn on October 26, 1989. The ruling on a partner’s interest in realty of the partnership that we refer to today is found in the discharge of the notice of lis pendens dated March 4, 1988, by the court, Licari, J.

       During oral argument the plaintiff raised an issue concerning General Statutes § 52-299. Since that issue was neither raised at the trial nor briefed on appeal, we will not review it.


text:
    Brett M. Amendola et al. v. Chris Geremia et al.
    (8013)
    Borden, Spallone and Foxi, Js.
    Argued December 19, 1989
    decision released March 13, 1990

      William F. Gallagher, with whom, on the brief, was Robert P. Borquez, for the appellants (plaintiffs).

      Matthew E. Frechette, for the appellee (defendant Keith Goclowski).
   Spallone, J.

The plaintiffs, Brett Amendola and his father, Ralph Amendola, appeal from the judgment rendered by the trial court for the defendant Keith Goclowski after the granting of Goclowski’s motion for summary judgment and the denial of the plaintiffs’ motion for summary judgment. The plaintiffs claim that the court erred (1) in concluding as a matter of law that Goclowski’s actions were not negligent and in failing to conclude as a matter of law that his actions were negligent, and (2) in concluding that the actions of the codefendants constituted superseding causes relieving Goclowski of liability. We agree that it was error for the court to grant Goclowski’s motion for summary judgment.

The following facts are not in dispute. The minor plaintiff, Brett Amendola, and the minor defendants, Keith Goclowski, James Gregory and Chris Geremia, were high school students involved in incidents in their homeroom classroom in which the defendant boys squirted water from plastic bottles at each other and at Amendola. After about two weeks of this practice, Gregory and Geremia agreed to fill a bottle with a bleach solution. On the morning of September 26,1984, Goclowski took a bottle from Gregory’s bookbag and, in the presence of the other defendants, threw, squirted or sprayed the bleach into Amendola’s face and eyes, causing severe injuries. The plaintiffs brought suit alleging negligence against Goclowski, Gregory, Geremia, the homeroom teacher, Bruce Faitsch, and the town of Guilford.

The plaintiffs moved for summary judgment against Goclowski, who then moved for summary judgment against the plaintiffs. The court denied the plaintiffs’ motion and granted Goclowski’s motion, determining as a matter of law that Goclowski was not negligent because he could not have anticipated that his actions Were likely to result in any harm to Amendola. The court also determined in the alternative that as a matter of law the actions of Gregory and Geremia were superseding causes that relieved Goclowski of liability for his negligence. This appeal followed.

The moving party for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Practice Book § 384; Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985). “To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984). A conclusion of negligence or freedom from negligence is ordinarily one of fact. Balboni v. Stonick, 2 Conn. App. 523, 527, 481 A.2d 82 (1984). The trier must determine whether, in his own opinion, the defendant’s actions meet the standards of conduct for one of reasonable prudence. Id., 527-28. “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 199, 319 A.2d 403 (1972).

The plaintiffs here alleged that Goclowski knew or should have known that the bottle contained bleach and that he failed to make reasonable inspection or examination of the contents of the bottle prior to spraying Brett Amendola. Goclowski, in his deposition and affidavit, asserted that he thought, indeed “knew,” that the bottle contained water as it had on all previous occasions. The plaintiffs offered no contrary evidence that Goclowski was aware of the contents of the bottle, nor did they claim that any such evidence was available. Absent such evidence, the court was justified in determining as a matter of law that there was no support for the plaintiffs’ allegation that Goclowski had prior knowledge of the bottle’s contents.

In granting Goclowski’s motion for summary judgment, however, the court also determined as a matter of law that Goclowski did not breach his duty of care owed Amendola when he failed to inspect the bottle or its contents before acting. This was a question of fact to be determined by the jury. “[T]he law itself furnishes no certain, specific, sufficient standard of conduct, and, of necessity, leaves the trier to determine, both what the conduct is, and whether it comes up to the standard, as such standard exists in the mind of the trier.” Farrell v. Waterbury Horse R. R. Co., 60 Conn. 239, 250, 21 A. 675 (1891); see also Balboni v. Stonick, supra.

The jury here was entitled to consider whether a reasonably prudent person would spray another person with an unknown substance from a bottle without first inspecting the contents. Goclowski’s subjective belief that the bottle contained water has no bearing on this question. See Murphy v. Soracco, 174 Conn. 165, 168, 383 A.2d 1350 (1978) (test of reasonableness is objective). Because factual determinations remained at issue, we conclude that the court properly denied the plaintiffs’ motion for summary judgment, but erroneously granted Goclowski’s motion for summary judgment.

The court also granted Goclowski’s motion for summary judgment on the alternate ground that even if Goclowski’s actions were negligent, the acts of Gregory and Geremia were, as a matter of law, superseding causes of the plaintiffs’ injuries. “[T]he doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another’s superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere.” D’Arcy v. Shugrue, 5 Conn. App. 12, 25, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985); see also Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 484, 523 A.2d 940 (1987); 2 Restatement (Second), Torts §§ 440-453. The doctrine of superseding cause cannot serve here as a basis for determining as a matter of law that Goclowski was relieved of liability. The doctrine must be applied to the facts of a case; D’Arcy v. Shugrue, supra, 26; and therefore involves the resolution of questions properly left to the factfinder.

Had it been permitted to decide the issue, the jury here indeed might have imposed no liability on Goclowski, finding that the acts of Gregory and Geremia were the sole proximate cause of Amendola’s injuries. The jury, however, could have reached other conclusions. The jury was entitled to consider whether Goclowski breached his duty of care by failing to examine the bottle and whether this breach constituted an intervening act of negligence relieving Gregory and Geremia of liability. The jury also was entitled to consider whether the acts of all the defendants together constituted concurrent causes of the injuries. If Goclowski’s negligence is deemed to have been a substantial factor in producing the minor plaintiff’s injuries, he is liable for the resulting harm, notwithstanding the negligence of others. See Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29, 266 A.2d 370 (1969). We therefore conclude that the court erred in determining as a matter of law that the actions of Geremia and Gregory constituted superseding causes relieving Goclowski of liability.

There is error in part, the judgment in favor of Keith Goclowski is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.


text:
    Jeffrey P. Ossen v. Gail Wanat et al.
    (7575)
    Spallone, Daly and Norcott, Js.
    Argued January 3
    decision released March 13, 1990

      F. Woodward Lewis, Jr., with whom was Robert J. Mead, for the appellants (defendants).

      Barry T. Pontolillo, with whom, on the brief, was M. Frances Reese, for the appellee (plaintiff).
   Norcott, J.

This appeal involves a summary process action in which the trial court rendered judgment in favor of the plaintiff, Jeffrey P. Ossen. The defendants appeal from that judgment claiming that the trial court erred (1) in finding that an oral month-to-month tenancy existed between the plaintiff and the defendant Gail Wanat, (2) in refusing to allow the defendants to sell their mobile home on the leased park site during the pendency of the summary process action, (3) in refusing to consider constitutional challenges to the summary process action, (4) in denying the defendants’ motion to dismiss and Laura Ellis’ claim for exemption from judgment because of a lack of service on her of a notice to quit, and (5) in taxing expenses, including attorney’s fees, on the defendants. We find no error.

The following procedural history is germane to this appeal. In 1985, the plaintiff and the defendant Gail Wanat entered into a written lease for lot twenty-four of the Three Oaks Mobile Home Park in Wallingford, owned by the plaintiff. On March 16, 1985, the plaintiff served the defendants with a notice to quit for failure to pay rent; he also informed the defendants, in a letter dated April 8,1985, that future rental payments would be refused. No further action was taken on this notice to quit, even though the defendants continued to live in the mobile home, without paying rent, until 1988.

On May 14,1988, the plaintiff served the defendants with another notice to quit, this one purporting to terminate an oral month-to-month agreement that existed between the parties since 1985. On July 7, 1988, the plaintiff filed the present action alleging the termination of an oral lease and demanding immediate possession.

On August 15,1988, after Wanat informed the plaintiff of her desire to sell the mobile home, the defendants moved for a stay of the proceedings, and the next day the defendants filed a motion for permission to sell the mobile home. The trial court, Gaffney, J., denied both motions. On October 21, 1988, the trial court granted the plaintiffs motion to strike the defendants’ twelve special defenses and a counterclaim asserting that the defendants were unjustly denied the right to sell their mobile home pursuant to the procedures set forth in General Statutes § 21-79. The defendants moved to dismiss the proceeding because the notice to quit was not served on Laura Ellis, daughter of the defendant Gail Wanat and an alleged subtenant, and therefore did not meet the requirements of General Statutes § 47a-26h. After a hearing, this motion too was denied by the court. Thereafter, on November 18,1988, the court, Gaffney, J., rendered judgment awarding possession to the plaintiff. The court reserved judgment, pending another hearing, on the plaintiff’s motion for taxation of costs.

On January 31, 1989, Judge Gaffney issued a memorandum of decision in which he taxed expenses in favor of the plaintiff in the amount of $25 and allowed him to recover attorney’s fees in the amount of $250 because of the weakness of the defendants’ case and because of the defendants’ “abusive pleadings.” The defendants’ appeal followed.

After this appeal had been filed, Laura Ellis filed a claim for exemption on March 29,1989. She based her claim upon the same argument asserted in the defendants’ motion to dismiss, that she was entitled to notice because she was a subtenant in the mobile home. The court, Ripley, J., denied her claim, and the defendants filed an amended appeal raising this denial as part of their issue that the trial court erred in finding that Laura Ellis was not entitled to notice.

With respect to the defendants’ first claim of error, we note that the single issue in the underlying summary process action was whether the defendants had failed to pay the rent due and owing to the plaintiff for the period noticed in the complaint. The record clearly supports the court’s conclusion that they had not paid the rent. The record also contains ample evidence from which the court could reasonably have concluded that the parties began an oral month-to-month tenancy at the termination of their written lease. On review, we will not invade the factfinding province of the trial court or disturb its legal conclusions when they are sufficiently supported by the evidence before it. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987).

The defendants next argue that the trial court erred in denying their motion to sell their mobile home during the pendency of a summary process action in order to satisfy arrearages owed the plaintiff. As authority for their right to sell, the defendants cite General Statutes § 21-79. “Section 21-79 protects tenants at mobile home parks from being forced to sell to park owners at a substantial loss and as a consequence benefits many low income people who cannot otherwise afford to purchase more expensive housing.” Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 648, 546 A.2d 805 (1988), appeal dismissed, 489 U.S. 1002, 109 S. Ct. 1104, 103 L. Ed. 2d 169 (1989). General Statutes § 21-80 (b) (1) (A), on the other hand, specifically provides in pertinent part that “an owner [of a mobile manufactured home park] may terminate a rental agreement or maintain a summary process action against a resident who owns his mobile manufactured home only for one or more of the following reasons: (A) Nonpayment of rent, utility charges or reasonable incidental services charged . . . .” Furthermore, “[s]ection 21-80 (b) (4) provides that unless otherwise specified, ‘proceedings under this chapter [412] shall be prescribed under Chapter 832,’ the general summary process chapter.” Ossen v. Kreutzer, 19 Conn. App. 564, 569, 563 A.2d 741 (1989). It is clear from a review of the relevant statutes that they provide for no such procedure as the defendants suggest, namely, selling the mobile home to pay rent arrearages once a summary process action for nonpayment of rent has begun.

The defendants’ next claim requires little discussion. In essence, the defendants claim that the trial court’s interpretation of the statutory scheme addressing summary process and mobile homes resulted in a deprivation of their constitutional right to sell their mobile home. We disagree.

Summary process is a straightforward action limited to a few simple questions of fact. Davidson v. Poli, 102 Conn. 692, 695, 129 A. 716 (1925); Yarbrough v. Demirjian, 17 Conn. App. 1, 3, 549 A.2d 283, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988); Scinto v. Bridgeport Cash & Carry, Inc., 38 Conn. Sup. 514, 516-17, 452 A.2d 940 (1980). While in certain cases complex issues may necessarily be a part of the action; Southland Corporation v. Vernon, 1 Conn. App. 439, 445-51, 473 A.2d 318 (1984); the ordinary summary pace cannot be “stalled by the defendant’s simply raising the spectre of a complexity which is not . . . rooted in the nature of the relationship between landlord and tenant and in the basis of the landlord’s claim to possession; or simply by the defendant’s threat to raise complex defenses which are not likely to be asserted in good faith . . . .” (Footnote omitted.) Id., 450-51. The resolution of the complex constitutional issues, which the court found were not brought in good faith, has no place in this summary process action. We agree with the trial court’s conclusion that the constitutional issues that the defendants attempted to raise “are far beyond the scope of the statutory action that is before the Court.” The trial court did not err in refusing to consider the defendants’ constitutional claims in the context of this summary process action and in striking them from the pleadings.

The defendants’ claims that the court erred in denying their motion to dismiss and Laura Ellis’ subsequent claim of exemption from judgment are also without merit. The defendants argue that Laura Ellis, Wanat’s daughter, should have been a defendant in this action and was entitled to notice because she was a “subtenant” in the mobile home whose presence was known to the landlord. In a hearing on the motion to exempt, the court, Ripley, J., heard testimony from both mother and daughter and from the plaintiff. After the hearing, the court concluded, in a written memorandum of decision dated May 10, 1989, that “the plaintiff has demonstrated through the testimony of the claimant that she was not an occupant of the premises at the time of commencement of the summary process action,” and that, accordingly, she was not entitled to notice under law.

The weight and credibility to be accorded witnesses is totally within the purview of the trier of fact. Temple v. Meyer, 208 Conn. 404, 407, 544 A.2d 629 (1988); State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). Absent any clear error, we will not disturb the trial court’s legal conclusions that are based on ample evidence in the record. Temple v. Meyer, supra. There is no such error here.

The defendants finally contend that the trial court erred in taxing expenses, including attorney’s fees, in favor of the plaintiff. We disagree.

Practice Book § 111 authorizes the trial court to tax reasonable expenses, including attorney’s fees incurred by an opposing party, when the court finds that a party has made an allegation or denial in the pleadings that is without reasonable cause and is untrue. This section, in effect, authorizes the court to impose sanctions on a party for resorting to bad faith pleading. Here, Judge Gaffney found that the defendants’ answer, a general denial coupled with twelve special defenses that went beyond the scope of the summary process action, constituted improper pleading and was “calculated to enhance the plaintiff’s burden of proof.”

“[T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court.” Fattibene v. Kealey, 18 Conn. App. 344, 362, 558 A.2d 677 (1989). Good faith pleading must be judged in the light of all the circumstances existing at the time the pleading was filed. State v. Anonymous (1974-5), 31 Conn. Sup. 179, 180-81, 326 A.2d 837 (1974); see also 1 W. Moller & W. Horton, Connecticut Practice Book Annotated (1989) § 111, p. 279. “To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; ‘[t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation.’ ” (Emphasis added.) Fattibene v. Kealey, supra, 361.

The court, in its memorandum of decision, carefully reviewed the entire pleadings. In so doing, it specifically noted that, by renewing in later pleadings three of their twelve special defenses previously stricken, the defendants wilfully violated the order to strike and exhibited an attitude toward the pleadings that the court found not to be conducive to good faith pleading. In our review of the trial court’s action, we find that the trial court did not abuse the discretion vested in it by Practice Book § 111 in taxing the defendants $25 in expenses and $250 in counsel fees.

There is no error.

In this opinion the other judges concurred.

       The defendants are Gail Wanat, owner of the mobile home, Joseph Driscoll and Eugene Ellis, estranged husband of Gail Wanat’s daughter, Laura Ellis.

       The defendants’ constitutional issues were set forth in their first and second “substituted special defenses” as follows:
      “First Special Defense
      * * *
      “6. The summary process statutory procedure for mobile homes in Connecticut is unconstitutional as applied in this case because the plaintiffs taking of the equitable property interest in the defendant’s mobile home is a taking without notice of the interest being taken, a taking without a hearing as to the value of the said equitable interest and, finally, it is a taking without just compensation in violation of Article Five and the due process requirements of notice and an opportunity to be heard of Article • Five of the Fourteenth Amendment of the United States Constitution, and including violations of Article I, Section 10 of the Constitution of the State of Connecticut when the defendant is not being allowed to sell her mobile home on the lot.
      “Second Special Defense
      * * *
      “6. The summary process statutory procedure for mobile homes in Connecticut is unconstitutional as applied in this case because the plaintiff’s taking of the equitable property interest in the defendant’s mobile home is also a violation of the equal protection clause of the Fourteenth Amendment because it has the effect of taking an equitable property interest without notice, hearing or compensation as a result of ‘summary process action.’ It also has the effect of treating mobile home owners differently from all of the other tenants in the state in that the taking of the equitable interest in other homeowners’ property requires a foreclosure action, and including violations of Article 1, Section 20 of the Constitution of the State of Connecticut when the defendant is not being allowed to sell her mobile home on the lot.”

       “[General Statutes ] Sec. 21-79. owner prohibited from restricting RESIDENT’S RIGHT to sell, (a) No owner or operator of a mobile manufactured home park shall require a resident who owns a mobile manufactured home which is safe, sanitary and in conformance with aesthetic standards to remove the home from the development at the time such mobile manufactured home is sold or a mortgage on such a home is foreclosed provided that the purchaser or foreclosing mortgagee shall assume and be bound by the rental agreement of the foreclosed mortgagor and shall be bound by the rules and regulations of the park.”

       As this court acknowledged in Southland Corporation v. Vernon, 1 Conn. App. 439, 451, 473 A.2d 318 (1984), the judges who are presented with a case involving claims of undue complexity in summary process actions “are more than able to glean the wheat from the chaff.”

       Practice Book § 111 provides:
      “Sec. 111. -UNTRUE ALLEGATIONS OR DENIALS
      “Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding two hundred fifty dollars for any one offense. Such expenses shall be taxed against the offending party whether he prevails in the action or not.”

       With respect to the $25 expenses, the trial court concluded that “the plaintiff incurred expenses in connection with a subpoena of the defendant Wanat to compel her attendance at trial, such attendance and testimony being a necessary consequence of the untrue pleading.”