author: DRANGINIS, J.

text:
    EUGENE P. MERCER v. HECTOR RODRIQUEZ ET AL.
    (AC 24280)
    Dranginis, DiPentima and Hennessy, Js.

      Argued January 16
    officially released June 8, 2004

      Eugene P. Mercer, pro se, the appellant (plaintiff).

      LynnD. Wittenbrink, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

DRANGINIS, J.

This appeal requires that we decide whether the trial court properly determined that it lacked subject matter jurisdiction to hear the plaintiffs federal claims because he failed to exhaust available administrative remedies as required by the federal Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e (a). Although we conclude that the plaintiff failed to exhaust available administrative remedies, we also conclude that his failure to exhaust such remedies did not deprive the court of subject matter jurisdiction. Nonetheless, we affirm the judgment of the trial court dismissing the action, as a prisoner may not bring an action seeking federal relief until the prisoner has exhausted available administrative remedies.

The pro se plaintiff, Eugene P. Mercer, commenced this action in 2002 when he was in the custody of the commissioner of correction (commissioner) at the correctional institution at Cheshire. In a five part complaint, the plaintiff alleged that the defendants, employees of the department of correction (department), had failed to assign him to the motor vehicle marker shop (marker shop) at Cheshire on the basis of his physical disability, which violated his rights under titles I and II of the Americans with Disabilities Act of 1990 (disabilities act), § 504 of the Rehabilitation Act of 1973 (rehabilitation act), and the equal protection clauses of the federal and state constitutions. He sought compensatory and punitive damages, declaratory and injunctive relief, and attorney’s fees.

The defendants filed a motion to dismiss the complaint, claiming that the court lacked subject matter jurisdiction pursuant to 42 U.S.C. § 1997e (a) because the plaintiff had failed to exhaust available administrative remedies. They also argued that sovereign immunity barred the court’s jurisdiction over the plaintiff’s claims for damages under the rehabilitation and disabilities acts, and that the plaintiffs claims were moot because he was no longer confined to the facility at Cheshire.

The court granted the defendants’ motion to dismiss, agreeing that it lacked subject matter jurisdiction pursuant to 42 U.S.C. § 1997e (a). The court found that the plaintiffs claims were “grievable” and that he had failed to avail himself of the department’s grievance process. The court added, in its memorandum of decision, that the rationale of the exhaustion requirement in 42 U.S.C. § 1997e (a) is consistent with this state’s jurisprudence on subject matter jurisdiction. The plaintiff appealed to this court.

The essence of the plaintiffs appellate claims is that the court improperly dismissed his complaint pursuant to 42 U.S.C. § 1997e (a) because there were no administrative remedies available to him and, further, that the court improperly determined that he had not exhausted the available administrative remedies. In their brief, the defendants argued that the court’s judgment of dismissal on jurisdictional grounds should be affirmed under both 42 U.S.C. § 1997e (a) and Connecticut law. Prior to oral argument in this court, however, the defendants brought the case of Richardson v. Goord, 347 F.3d 431 (2d Cir. 2003), to our attention, which informs our decision as to how, not whether, the plaintiffs claims are dismissed.

Our standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of lack of subject matter jurisdiction concerns a question of law and is plenary. Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 219, 815 A.2d 281 (2003). “[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . .” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). “[I]t is axiomatic that this court has jurisdiction to determine whether it has jurisdiction.” First National Bank of Chicago v. Luecken, 66 Conn. App. 606, 610, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002).

“A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. . . . Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, supra, 75 Conn. App. 219.

We axe mindful that “[t]he power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John, 80 Conn. App. 767, 771, 837 A.2d 841 (2004).

Because the allegations of the complaint determine whether the court has subject matter jurisdiction, our first step is to examine the allegations of the plaintiffs amended complaint. The complaint, at first blush, is unusual in that it is styled in the federal fashion, which, by itself, is not a fatal defect. The plaintiff alleges that the court had jurisdiction to hear the action pursuant to title II of the disabilities act, 42 U.S.C. § 12131 et seq., the rehabilitation act, 29 U.S.C. § 701 et seq., and the equal protection clauses of the state and federal constitutions. A party, however, cannot confer subject matter jurisdiction merely by alleging it; see Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003); as the allegations of the complaint are controlling. The plaintiffs jurisdictional allegations invoke the sources of the remedies he seeks.

The court dismissed the plaintiffs complaint because he had failed to exhaust the administrative remedies available pursuant to the department’s grievance procedures. The court, however, did not state its factual findings underlying that conclusion in its memorandum of decision and the plaintiff failed to seek an articulation. See Practice Book § 66-5. In their motion to dismiss, the defendants addressed the plaintiffs claims as an employment issue and argued that the department did not offer employment opportunities, but rather employment programs to facilitate prisoners’ reentry into society. During argument on the motion to dismiss, the plaintiff asserted that his claims were based on his classification assignment. The court found that the plaintiffs claims were grievable without identifying the department administrative directive or other remedies the plaintiff had failed to exhaust. On appeal, the plaintiff argues that the court improperly determined that his claims were grievable. He claims that under department administrative directive 9.6, classification assignments are not grievable. The defendants argue that not only did the plaintiff fail to exhaust the remedies available within the department, but also that he failed to avail himself of the remedies afforded by the state commission on human rights and opportunities and the federal Equal Employment Opportunity Commission.

We therefore examine the plaintiffs allegations of wrongdoing to determine the nature of his claims, which, in turn, will guide our identification of the administrative remedy or remedies the plaintiff was required to exhaust, if any. “[T]he interpretation of pleadings is always a question of law for the court .... We have pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that propose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . But essential allegations may not be supplied by conjecture or remote implication.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).

The plaintiff alleged that he is “a qualified individual with a disability who is mobility impaired and uses a walker and cane for ambulation .... Although mobility impaired the plaintiff can perform the essential function of the employment position he desires.” (Emphasis added; internal quotation marks omitted.) In identifying the various defendants, he used two terms to allege their various responsibilities: inmate classification and work industries program.

In 2001, the plaintiff asked to be assigned to a clerical position in the marker shop. His application was denied because “ ‘inmates are not hired for specific positions within the Marker Shop, positions are filled as the need arises.’ ” The plaintiff again applied for a position in the marker shop, but was informed by two of the defendants “ ‘that the administration has concerns that [he] may fall and injure [himself], particularly during inclement weather.’ ” The plaintiff assured these defendants that his walker and cane were sufficient to help him ambulate during inclement weather, and he informed them that “their concerns could not stand as the basis to deny [his] participation in this program or activity.” On one occasion, a defendant informed him that “ ‘the shop is not equipped for persons with disabilities.’ ” The plaintiff told the defendants that “ ‘he was not seeking any structural modifications or accommodations that would fundamentally alter the nature of the work program; and that [his] participation in this work program was not predicated on whether the shop was structurally equipped for persons with disabilities.’ ”

In December, 2001, the plaintiff informed the defendant warden that the disabilities act provides that “ ‘[n]o qualified inmate with a disability shall be discriminated against from participation in work programs. The Department shall make reasonable accommodation to the known disability of qualified applicants.’ ” The plaintiff underwent a physical examination that resulted in medical authorization for him to be assigned to the work program in the marker shop. The plaintiff learned that he was officially classified and assigned to the marker shop program. Other inmates were permitted to participate in the marker shop, but despite having medical authorization, the plaintiff was not.

The plaintiff alleged that the defendants intentionally denied him an equal opportunity to benefit from the marker shop program on the basis of their irrational concerns, perceptions or fears for his safety. He also alleged that the defendants did not prevent him from participating in the marker shop work program due to the necessity of an accommodation that would exceed the requirements of the disabilities act or impose an undue financial administrative burden. Furthermore, the plaintiff believed that the department receives federal funds.

We note, significantly, that the plaintiff did not allege specifically that he had exhausted the available administrative remedies. Despite the absence of this specific allegation, we grant the plaintiffs complaint the liberal interpretation to which it is entitled. The plaintiff alleged that he submitted and resubmitted applications to participate in the marker shop work program. He discussed the situation with certain of the defendants. In the trial court, he presented the court with copies of correspondence with the department ombudsman related to the issue. The parties disputed the issue of exhaustion before the court. If the court had found that the plaintiff had exhausted the available administrative remedies, he could have amended his complaint to incorporate that allegation. See Practice Book § 10-62. Unfortunately, for the plaintiff, the court found that he had not exhausted his remedies under the department’s grievance system.

In the trial court and on appeal, the parties dispute whether the opportunity the plaintiff sought in the marker shop was related to classification, a program or employment. The essence of the plaintiffs claim is that the court incorrectly held that he had not exhausted his available remedies because the claim was grievable. By referring to his claim both in the trial court and here as a classification issue, the plaintiff argues that pursuant to department administrative directive 9.6, classification issues are not subject to the department’s grievance system. He concludes, therefore, that there was no available remedy for him to exhaust.

In resolving the plaintiffs claims, we need not determine whether the opportunity the plaintiff sought in the marker shop concerned employment, classification or programming. The department has promulgated certain administrative directives. Directive 9.2 addresses the inmate classification system, and directive 9.6 concerns a multitiered grievance system. The classification directive provides at 9.2.15 that “[a] classification decision may be appealed to the Unit Administrator or designee within 15 days of the decision.” (Emphasis added.) The amended complaint does not allege that the plaintiff availed himself of directive 9.2.15. The plaintiff did not allege that any of the defendants are the unit administrator or designee or that any of his actions were taken within fifteen days of a decision. Although the court did not address classification issues, nothing the plaintiff attached to his objection to the defendants’ motion to dismiss is relevant to directive 9.2.15. If the plaintiffs claim is a classification issue, we conclude that he did not exhaust the available administrative remedy of an appeal as provided in directive 9.2.15.

The plaintiff correctly argues that classification decisions are not grievable pursuant to directive 9.6.6.B.4. Directive 9.6.6.A sets forth inmate concerns that are grievable. Subdivision five provides that the following issues are grievable: “Any other matter relating to access to privileges, programs and services, conditions of care or supervision and living unit conditions within the authority of the Department of Correction, to include rights under the Americans with Disabilities Act, except as noted herein.” The court found that the plaintiffs claims were grievable. The plaintiff acknowledges that he did not file a grievance. Even if the court was wrong and the plaintiffs claim was one of classification, the plaintiff did not file an appeal as provided by directive 9.2, which was an administrative remedy available to him.

The United States Supreme Court in Porter v. Nussle, 534 U.S. 516, 519, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002), addressed the obligation of inmates, who claim their federal rights were denied while they were incarcerated, to exhaust prison grievance procedures before seeking judicial relief. The Supreme Court discussed the history of 42 U.S.C. § 1997e (a) and its predecessor, noting that in 1996, Congress invigorated the exhaustion provision of the Prison Litigation Reform Act. Id., 524. The dominant concern of the act is “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court . . . .” (Citation omitted.) Id., 528. “[Ejxhaustion in cases covered by § 1997e (a) is now mandatory.” Id., 524.

The allegations of the complaint regarding the actions the plaintiff took to resolve his claim of discrimination by speaking to the defendants and writing letters is unavailing to his claim that he exhausted the available remedies because those actions do not satisfy the requirements of administrative remedies available to him. See Hock v. Thipedeau, 245 F. Sup. 2d 451 (D. Conn. 2003). In Hock, the plaintiff inmate brought an action against the defendant, a former department of correction officer, for violating the eighth amendment right to be free of cruel and unusual punishment. Id., 452-53. While the plaintiff was incarcerated, she and the defendant engaged in a relationship, which, when discovered, resulted in the defendant’s resignation from the department and the plaintiffs action. Id., 454. The plaintiff voluntarily cooperated with the department investigation of the defendant’s conduct. Id. Thereafter, she commenced an action against the defendant. After the jury returned a verdict in her favor, the defendant filed a motion to reconsider the court’s denial of his motion to dismiss. Id., 453.

The United States District Court for the District of Connecticut granted the motion to reconsider and set aside the jury’s verdict, concluding that the plaintiff had failed to exhaust the administrative procedures set forth in the department directive. Id., 458. “Under Connecticut’s administrative scheme, if a complaint is brought to the attention of the [department of correction] and it investigates the matter and makes conclusions based on information provided in part by an inmate, that does not relieve the inmate of her responsibility to follow the proper procedures if she decides to bring a federal action based on such claims.” Id., 457, citing Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). Furthermore, the department’s directives “set forth the procedures for an inmate to set into motion the grievance process.” Hock v. Thipedeau, supra, 245 F. Sup. 2d 456. “[G]rievances that are rejected may be appealed; the Directives provide for three levels of review.” Id. The District Court ruled that the plaintiff in Hock “must exhaust all available administrative procedures as set forth in the Directives prior to filing suit in Federal Court.” Id., citing Booth v. Churner, supra, 736. We therefore conclude that the plaintiffs alleged efforts to secure a place in the marker shop did not exhaust the administrative remedies that were available.

On appeal, the plaintiff also claims that 42 U.S.C. § 1997e (a) does not require that he exhaust the department’s grievance procedure because the grievance procedure does not provide for damages. This is precisely the question that was decided to the contrary in Booth v. Churner, supra, 532 U.S. 734 (“question is whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money”). “The meaning of the phrase ‘administrative remedies . . . available’ is the crux of the case .... Neither of [the parties] denies that some redress for a wrong is presupposed by the statute’s requirement of an ‘available’ ‘remed[y]’; neither argues that exhaustion is required where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint. The dispute here, then, comes down to whether or not a remedial scheme is ‘available’ where . . . the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.” Id., 736.

“The ‘available’ lremed[y]’ must be ‘exhausted’ before a complaint under [42 U.S.C.] § 1983 may be entertained. While the modifier ‘available’ requires the possibility of some relief for the action complained of . . . the word ‘exhausted’ has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered.” Id., 738-39. “It makes no sense to demand that someone exhaust ‘such administrative [redress]’ as is available; one ‘exhausts’ processes, not forms of relief, and the statute provides that one must.” Id., 739. In the matter before us, we therefore conclude that the plaintiff was required to exhaust the available department grievance procedure before he brought an action in the Superior Court seeking relief under federal law.

Although the plaintiff failed to sustain his burden of exhausting the available administrative remedies before he sought judicial assistance, we must consider, in view of Richardson v. Goord, supra, 347 F.3d 431, whether the court properly determined that it lacked subject matter jurisdiction. “If [the trial court] applied any wrong rule of law to the situation, it was not acting without jurisdiction but in the erroneous exercise of its jurisdiction.” Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930).

In Richardson v. Goord, supra, 347 F.3d 431, the United States Court of Appeals for the Second Circuit agreed to follow the holding of its sister circuit courts of appeal that have ruled on the question of whether the exhaustion requirement of 42 U.S.C. § 1997e (a) controls subject matter jurisdiction. Those courts have concluded that the language of the statute “simply governs the timing of the action and does not contain the type of sweeping and direct language that would indicate a jurisdictional bar rather than a mere codification . . . of administrative exhaustion requirements.” (Internal quotation marks omitted.) Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002), citing Weinberger v. Salfi, 422 U.S. 749, 757, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). “[A]n administrative claim is not essential to a case or controversy, and 28 U.S.C. § § 1331, 1343 supply subject-matter jurisdiction. Section 1997e (a) does not affect the jurisdiction established by those statutes.” Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). In the federal courts, a case in which a prisoner fails to exhaust the available administrative remedies may be dismissed for failure to exhaust administrative remedies under 42 U.S.C. § 1997e (a), but not for lack of subject matter jurisdiction on that basis. Id., 538. “The provision does not defeat federal-court jurisdiction, it merely defers it.” (Internal quotation marks omitted.) Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208 (10th Cir. 2003); see also Richardson v. Goord, supra, 347 F.3d 431; Casanova v. Dubois, 289 F.3d 142 (1st Cir. 2002); Chelette v. Harris, 229 F.3d 684 (8th Cir. 2000), cert. denied, 531 U.S. 1156, 121 S. Ct. 1106, 148 L. Ed. 2d 977 (2001); Nyhuis v. Reno, 204 F.3d 65, (3d Cir. 2000); Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999); Wright v. Morris, 111 F.3d 414 (6th Cir. 1997).

In this action, the plaintiff sought relief under the rehabilitation and disabilities acts. Section 12202 of title 42 of the United States Code provides in relevant part: “A state shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. . . .” (Emphasis added.) See footnote 7. The rehabilitation act is in accord with 42 U.S.C. § 12202. The federal statutes grant the plaintiff the right to commence an action in a state court.

The Superior Court is a constitutional court, the jurisdiction of which is defined by law. Conn. Const., art. V, § 1. “The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . .” General Statutes § 51-164s. Indeed, the Superior Court has jurisdiction to hear administrative appeals involving claims arising under the disabilities and rehabilitation acts. See, e.g., Unified School District No. 1 v. Dept. of Education, 64 Conn. App. 273, 780 A.2d 154, cert. denied, 258 Conn. 910, 782 A.2d 1253 (2001); Gedney v. Board of Education, 47 Conn. App. 297, 703 A.2d 804 (1997), cert. denied, 243 Conn. 968, 707 A.2d 1268 (1998), respectively.

Although the Superior Court has jurisdiction to hear cases concerning prison conditions arising under federal law, a prisoner may bring such an action only after he has exhausted such administrative remedies as are available. Here, the court dismissed the plaintiffs cause of action for lack of subject matter jurisdiction. Because the Superior Court had subject matter jurisdiction over the plaintiffs claims, the dismissal was procedurally improper. Nevertheless, we find that the dismissal was harmless based on our Supreme Court’s holding in Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 815 A.2d 1188 (2003).

In Fort Trumbull Conservancy, LLC, our Supreme Court determined that the trial court’s dismissal of the plaintiffs claims against the defendant city and the defendant building official for lack of subject matter jurisdiction was improper. Id., 497. The court, nonetheless, found that the dismissal was harmless. It reasoned that the plaintiffs claims were subject to a motion to strike on the ground of legal insufficiency and that the plaintiffs ability to amend after a motion to strike would have been unavailing. Id., 497-502; see also McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 527-28, 590 A.2d 438 (1991) (although trial court should have treated motion to dismiss as motion to strike, procedural irregularity was harmless because plaintiff could not demonstrate that it could amend complaint to avoid original deficiencies). Applying the aforesaid reasoning to the present case, the judgment of the trial court is affirmed, although it was founded on an improper reason.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is currently incarcerated at the Osborn correctional institution in Somers.

       The defendant prison officials are Hector Rodriquez, John Hall, Rick Bartholomew, Richard Brozozski, Mike Fourtin, Rich Alhage, A1 Brown and an individual the plaintiff identified only as Mr. Petrocca.

       The plaintiff brought the action against the defendants in their individual and official capacities. He subsequently amended his complaint to allege claims against the defendants in their official capacities only. At the time of the hearing on the defendants’ motion to dismiss, the plaintiff withdrew his claims alleged pursuant to title I of the disabilities act.

       “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” (Emphasis added.) 42 U.S.C. § 1997e (a).

       In support of its decision to dismiss the complaint for lack of subject matter jurisdiction, the court cited O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995) (“ ‘if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter’ ”). To resolve the appeal, we need not reach the exhaustion doctrine of this state or the question of whether an adequate remedy and available remedies are the same thing. But see Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001).
      The court did not address the other grounds for dismissing the complaint raised by the defendants in their motion to dismiss. On appeal, the defendants state in a footnote in their brief that the plaintiffs claims are moot in view of the plaintiffs having been transferred to the Osborn correctional institution in Somers. The defendants’ argument is not briefed adequately, and we fail to see how the plaintiffs claim for damages can be moot.

       The plaintiff articulated his claims in the following manner in his brief. “A. The Superior Court erred in finding that the plaintiff-appellant is held to the provisions of the Prison Litigation Reform Act where grievance procedure was not available . . . . B. The Superior Court erred in dismissing plaintiffs action in holding plaintiff to the provisions of the Prison Litigation [Reform] Act where the administrative remedies of the department of correction’s grievance procedure [do] not specifically provide for monetary damages . . . .”

         Section 12202 of title 42 of the United States Code provides: “A state shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.”

       Section 794 (d) of title 29 of the United States Code provides: “The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12201-12204 and 12210), as such sections relate to employment.”

       Not only is our review of the dismissal of the plaintiffs claims for lack of subject matter jurisdiction hampered by the brevity of the court’s memorandum of decision, but our review also is hampered by the plaintiffs failure to submit a transcript of the proceedings before the court. We are uncertain whether the court merely heard oral argument on the defendants’ motion to dismiss or also held a hearing to determine whether the plaintiff had exhausted available administrative remedies. It is also unclear whether exhibits were admitted into evidence. The appellant is responsible for providing an adequate record for our review. See Practice Book § 61-10.
      “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Citation omitted; internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

       The relevant portions of the department directive were attached to the parties’ motion papers in the trial court and included in the appendices of their briefs in this court. All parties rely on them, and we therefore take judicial notice of them.

       Paragraph forty of the amended complaint undercuts the validity of the plaintiffs argument. In paragraph forty, he alleged that he was officially classified and assigned to the marker shop.

       Because we conclude that the plaintiff failed to exhaust the available administrative remedies of the department as required by 42 U.S.C. § 1997e (a), we do not address the defendants’ remaining arguments.

       The court did not have the benefit of Richardson v. Goord, supra, 347 F.3d 431, at the time it ruled on the motion to dismiss.

       The question of whether Congress has authority to waive a state’s sovereign immunity was addressed by the United States Supreme Court in Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004).

       Our rules of practice provide that a motion to dismiss shall be used to assert “(1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process. . . .” Practice Book § 34a-10 (a).


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    GEOFFREY SCOTT JOHNSON ET AL. v. ATLANTIC HEALTH SERVICES, P.C., ET AL.
    (AC 23636)
    Dranginis, Flynn and Hennessy, Js.

      Argued February 10
    officially released June 8, 2004

      Jeffrey R. Bobbin, for the appellants (defendants).

      Jeffrey C. Kestenband, with whom, on the brief, was Erik L. Kuselias, for the appellees (plaintiffs).
   Opinion

FLYNN, J.

This appeal originated from an action sounding in negligence brought by Geoffrey Schiebel Johnson on behalf of the minor plaintiff, Geoffrey Scott Johnson, and individually by the parent plaintiffs, Joanne Johnson and Geoffrey Schiebel Johnson, against the defendants, Atlantic Health Services, P.C. (Atlantic), and Julian Hartt. The defendants appeal from the decision of the trial court, Radcliffe, J., granting the plaintiffs’ motion to open the judgment of dismissal and claim that the court improperly determined that the motion to open was timely under Practice Book § 17-4 (a). We disagree with the defendants and affirm the order granting the motion to open.

The plaintiffs’ complaint alleged the following facts. In August, 1997, it became evident to the parent plaintiffs that the minor plaintiff required medical care for which his father’s employer provided insurance. Atlantic was consulted on the recommendation of the administrator of the plaintiff father’s health insurance plan, Value Behavioral Health (administrator). When the parent plaintiffs consulted Atlantic, they met with its agent, the defendant Hartt, who insisted that the parent plaintiffs sign a contractual agreement obligating them to be responsible for payment of the entire amount of professional fees, not just the uninsured copayment. The plaintiff father refused to sign the agreement and Atlantic was not engaged. Instead, the parent plaintiffs obtained another recommendation from the administrator, which recommended Dr. Robert M. Koenig, a physician, to treat the plaintiff minor. The plaintiff father also contacted the administrator to report the defendants’ procedures. The administrator informed the plaintiff father that the defendants should not have asked him to assume full responsibility for payment and that it would contact the defendants to correct the error.

The plaintiffs’ complaint further alleged that Atlantic, acting through Hartt, contacted the department of children and families (department), made a bad faith report of medical neglect against the parent plaintiffs and disclosed the minor plaintiffs confidential medical information. The plaintiffs further claimed that the department conducted a thorough and extremely personal investigation and concluded that Hartt’s complaint was a case of “false reporting” made in “retaliation” against the plaintiff father for making complaints against Atlantic. The plaintiffs’ complaint sought monetary and compensatory damages, attorney’s fees, punitive damages and interest and costs as a result of the defendants’ conduct.

The following procedural history and chronology is important to a proper understanding of the plaintiffs’ appeal. On August 21, 2000, the court, Blue J., granted the defendants’ motion to strike the complaint. Practice Book § 10-44 permits a party whose complaint has been struck to “file a new pleading . . . .” The rule further provides that when an entire complaint has been struck and that party fails to file a new pleading “within fifteen days” of the striking, the judicial authority may enter judgment on the stricken complaint. The defendants filed a motion for judgment on the stricken complaint on January 26,2001. In granting the defendant’s motion, Judge Blue issued a contingent order on February 13, 2001, that judgment on the stricken complaint would be granted “unless an amended complaint [was] filed by [March 1, 2001].” A clerk’s notation on the motion indicated “2/14/01 JDNO/SCRAM SENT” and further stated “(See Memo at 131).” No additional date appears on this motion. Nothing in the record indicates that any notice of actual judgment entering on the stricken complaint was sent to the plaintiffs. The plaintiffs claim that they mailed a revised complaint to the clerk’s office on February 27, 2001. However, the clerk’s date stamp on the revised complaint, indicating the date it was filed, read “March 7, 2001,” a date six days after the deadline that was set by Judge Blue. The defendants filed an objection to the amended complaint on two grounds: (1) that it was untimely; and (2) that it sought to add new causes of action without the court’s permission. The court, Booth, J., sustained the objection on April 30, 2002, noting that Judge Blue’s February 13, 2001 order had been “self-executing” and, therefore, judgment had entered in the defendants’ favor on March 1, 2001.

The plaintiffs filed a motion to open the judgment of dismissal on August 29, 2002, which was granted by Judge Radcliffe on September 16, 2002. In an articulation of his order, Judge Radcliffe found that the plaintiffs’ motion to open the judgment was timely filed in accordance with Practice Book § 17-4 (a), which provides that the four month period within which such motion may be filed commences from the “date on which notice was sent . . . .” The court noted that although the parties had received notice of Judge Blue’s February 13, 2001 contingent order, the parties had never received notice that judgment of dismissal had entered pursuant to the contingent order. Rather, the court opined, the parties were not officially notified of the entry of judgment until Judge Booth’s April 30, 2002 memorandum of decision was sent to them, explaining that judgment had entered on March 1, 2001. The court also noted that the dismissal was for procedural reasons and that confusion may have resulted concerning the status of the plaintiffs’ amended complaint. The court therefore concluded that the plaintiffs should not be deprived of a decision on the merits of their claims.

On appeal, the defendants specifically claim that Judge Radcliffe improperly determined that notice of the judgment was not received until April 30, 2002. The defendants contend that the plaintiffs’ failure to file the revised complaint by March 1, 2001, both caused the judgment of dismissal and comprised sufficient notice of the judgment because Judge Blue’s order of judgment was self-executing. Therefore, the defendants argue, no official notice was required to have been sent to the parties, and the proper date for purposes of calculating the commencement of the four month period within which the plaintiffs were permitted to file a motion to open the judgment was March 1, 2001, rendering their August 29, 2002 motion untimely. We disagree.

The parties are in dispute as to the applicable standard of review of this claim. The defendants argue that the issue of whether further notice is required after noncompliance with a contingent order is a question of law and, as such, our review should be plenary. The plaintiffs maintain that the determination of whether notice was sent is a finding of fact and we should review the court’s finding under a clearly erroneous standard. There was no dispute that the clerk did not send notice to the parties after judgment entered on March 1, 2001. The parties do dispute whether the motion to open was timely filed under Practice Book § 17-4 (a). We therefore find that the jurisdiction of the court has been challenged and apply the following standard of review. “When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion. . . . When the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment.” (Internal quotation marks omitted.) Federal Ins. Co. v. Gabriele, 54 Conn. App. 459, 461, 735 A.2d 368 (1999). “A challenge to the jurisdiction of the court presents a question of law. . . . Our review of the court’s legal conclusion is, therefore, plenary.” (Citation omitted.) Pitruzello v. Muro, 70 Conn. App. 309, 313, 798 A.2d 469 (2002).

The defendants argue that the plaintiffs’ noncompliance in failing to file an amended complaint by March 1, 2001, in effect, established sufficient notice of the fact that judgment had entered and cite Osborne v. Osborne, 2 Conn. App. 635, 638, 482 A.2d 77 (1984), in support of their claim. In Osborne, the trial court entered an order that a nonsuit would enter unless the plaintiff complied with the defendant’s discovery requests within one week. Id., 637. She did not do so and judgment of nonsuit entered. Id., 637-38. The plaintiff argued that because she never had received notice of the actual entry of the disciplinary nonsuit, no judgment of nonsuit had in fact entered, and the judgment should have been vacated. Id., 638. This court held that the failure to send notice or to enter judgment into the record did not affect the validity of the judgment of nonsuit. Id. We explained that “[a]n order of nonsuit terminates an action when it is issued and no further proceedings are necessary. . . . A judgment of nonsuit is a pro forma action of a clerk and [t]he clerk of the court is no longer required to mail a copy of the nonsuit to the party against whom it is directed. ... It is of no consequence that the plaintiff did not receive farther notice. The original notice was sufficient. The plaintiff was fully aware that a nonsuit was to enter unless she complied with the order.” (Citations omitted; internal quotation marks omitted.) Id.

The strength of this precedent is challenged, however, by our holding in Federal Ins. Co. v. Gabriele, supra, 54 Conn. App. 462, in which we stated that “Practice Book § 17-4, formerly § 326, was amended in 1997 to provide that a motion to open or set aside a judgment must be filed ‘within four months succeeding the date on which notice was sent,’ changing former § 326, which provided that a motion to open or set aside must be ‘filed within four months of the entry of judgment.’’ . . . Practice Book § 17-4 clarifies the issue of when the four month period commences by providing that the four month period does not commence until the date on which notice of the judgment is sent.” (Emphasis in original.) Federal Ins. Co. v. Gabriele, supra, 462. We held that the court improperly relied on the date that judgment was rendered, rather than on the date that notice of the judgment was sent, in determining that the motion to open had been untimely filed. Id., 462-63.

The fact that Practice Book § 17-4 (a) was amended in 1997, thirteen years after Osborne was decided, persuades us that Osborne is no longer controlling on the issue of whether notice must be sent when judgment has entered on an earlier contingent order. At the time Osborne was decided, according to § 17-4, formerly § 326, the date that judgment had entered was the only relevant date in terms of filing the motion to open. Therefore, the actual date of notice was irrelevant to a determination of the timeliness of a motion to open. The problem that arises in applying § 17-4 (a), as amended, to this case is that the plaintiffs’ noncompliance with Judge Blue’s order was the only “notice” given to the parties that judgment had entered. If the date of judgment was still used to determine the date of commencement of the four month period within which to allow a motion to open, Osborne would still be persuasive. Here, however, we must determine the date on which the plaintiff was “sent notice” of the entry of judgment in accordance with the revised rule, which is difficult given that no actual notice was ever sent. Using the date that notice of the contingent order was sent, February 14, 2001, is not a fair solution because it does not comprise notice of the judgment, which was not set to enter until a future date, if in fact it was to enter at all. Such a solution also would be illogical due to our holding in Federal Ins. Co. that notice of the judgment must be sent, not simply any kind of notice. Federal Ins. Co. v. Gabriele, supra, 54 Conn. App. 462.

We conclude that it was not until Judge Booth, in his April 30, 2002 memorandum of decision, settled the disputed issue of whether the plaintiffs had complied with Judge Blue’s order that the plaintiffs were given notice that judgment had entered against them. Notice is necessary to make a determination of the date that commences the four month period within which a party may file a motion to open a judgment. Noncompliance with a contingent order, by itself, cannot serve as notice of the resultant judgment.

Our conclusion is supported by the text of Practice Book § 17-4 (a), which provides in relevant part that a judgment may not be opened or set aside “unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. . . .” (Emphasis added.) The import of the phrase “notice was sent” cannot be overlooked in this case. We interpret this phrase in accord with its plain meaning, as our Supreme Court has held that “ [t]he rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); see also State v. Strickland, 243 Conn. 339, 347, 703 A.2d 109 (1997) (“Practice Book provisions are interpreted in accordance with the same principles that guide interpretation of our General Statutes”). The plain meaning of this phrase is that notice of the judgment must be sent to the parties in order to determine the date that commences the four month period within which a party may file a motion to open. Therefore, the defendants’ argument that the plaintiffs’ noncompliance was adequate notice for purposes of applying § 17-4 (a) is belied by the text of the rule that states that notice must be sent before the four month time period will commence. We also note that § 17-4 makes no provision for contingent orders and does not affirmatively exempt such orders from the notice requirement.

Our holding is also consistent with the line of cases that has held that “the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. . . . Habura v. Kochanowicz, 40 Conn. App. 590, 593, 672 A.2d 512 (1996). . . . Where the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification.” (Citations omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 71, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088, cert. denied, 537 U.S. 824, 123 S. Ct. 111, 154 L. Ed. 2d 35 (2002); see also Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 746, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). Finally, as we earlier noted, Federal Ins. Co. makes it clear that the notice provision set forth in Practice Book § 17-4 (a) refers to “notice of the judgment . . . .” Federal Ins. Co. v. Gabriele, supra, 54 Conn. App. 462.

Although normally we do not look to the opinions rendered by the Superior Court as authority, we find two Superior Court opinions particularly persuasive in our resolution of this appeal. These opinions deal with disciplinary nonsuits and the accidental failure of suit statute, but they serve to illuminate the problem that is caused for trial judges when notice of judgment is not sent by the clerk after a party fails to comply with a contingent order. In Morales v. Medina, Superior Court, judicial district of Hartford, Docket No. 590718 (November 2, 1999), Judge Beach was presented with a very similar issue where the court had ordered that a contingent nonsuit would enter “unless [the] plaintiff [complied] with [the] defendant’s request for interrogatories and production within 30 days.” (Internal quotation marks omitted.) The court examined this issue in terms of the application of General Statutes § 52-592, the accidental failure of suit statute, but made reference to the similar problem presented in calculating the time period for motions to open. The court stated that “[w]hile it may at first blush seem rather fatuous to require formal notice where, as in this case, the plaintiff ought to have actual knowledge of the situation, there is no other practical way of establishing a clearly defined modus operandi.” (Emphasis in original.) Id.

The Superior Court addressed this issue again in Golino v. Pereira, Superior Court, judicial district of Hartford, Docket No. CV 00 0802482 S (November 5, 2001) (30 Conn. L. Rptr. 650, 651), in which it stated that “trial courts have struggled to find a consistent and fair means of resolving disputes as to the timeliness of motions to open .... A recurring theme ... is the question of when the prior case terminated, when the context is an order granting a nonsuit unless compliance is made by a date in the future. . . . [Other Superior Court decisions have] decided that the only workable solution is to fix the operative date as the date of the sending of notice that the nonsuit . . . has actually entered. . . . [N]otions of fairness require the sending of a noncontingent notice stating that the nonsuit has entered, and the time allowed for pursuing the next step runs from the sending of that notice.” (Citations omitted.)

Last, we observe that “[i]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Further, “[o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.” (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001).

We conclude that because the first notice sent indicating that judgment had entered on March 1, 2001, was the opinion of Judge Booth, of which the clerk sent notice to the parties on April 30, 2002, the court correctly determined that the four months within which the plaintiffs had to open the judgment had not yet run when the plaintiffs filed their motion to open the judgment on August 29, 2002.

The order granting the motion to open is affirmed.

In this opinion the other judges concurred.

       “[A]n order opening a judgment ordinarily is not a final judgment within [General Statutes] § 52-263. . . . [Our Supreme Court], however, has recognized an exception to this rule where the appeal challenges the power of the court to act to set aside the judgment.” (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 658, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000).

       We note that “131” references the entry number in the case detail for Judge Booth’s April 30, 2002 memorandum of decision, discussed later in the body of 1his opinion, which the plaintiffs claim constituted the first official notice of the judgment of dismissal.

       Practice Book § 17-43, formerly Practice Book § 377, which sets forth the rule for opening judgments on default or nonsuit, was also amended in 1997. Prior to 1997, Practice Book § 377 provided: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed . . . .” See G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 120 n.2, 679 A.2d 32 (1996). Practice Book § 17-43 now provides: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent . . . .”


author: DiPENTIMA, J.

text:
    ELIZABETH ATKIN v. ANDREW MARKO ET AL.
    (AC 23776)
    Foti, West and DiPentiina, Js.
    Argued February 19
    officially released June 8, 2004

      Brenden P. Ley don, for the appellant (plaintiff).

      Catherine S. Nietzel, with whom, on the brief, was Jeffrey N. Gaull, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

In this personal injury action, the plaintiff, Elizabeth Atkin, appeals from the judgment of the trial court rendered following a hearing in damages. On appeal, the plaintiff claims that the court improperly charged the jury on the issue of calculating future medical expenses. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. On May 8, 1999, a motor vehicle driven by the plaintiff was struck by a motor vehicle operated by the defendant Andrew Marko and owned by the defendant Leslie Bierman. The defendants admitted liability, and the case proceeded to the jury for a hearing in damages.

The plaintiff sought treatment from Maria Passaro, a physician, who testified regarding the plaintiffs injuries and treatment. Passaro testified that the plaintiff suffered permanent partial impairments as defined by the guidelines of the American Medical Association. Passaro testified that future periodic care would most likely be necessary and that the plaintiff should undergo an electromyogram for further diagnostic testing.

Passaro further testified that the plaintiff was instructed in November, 1999, that she should return for treatment if her symptoms increased despite the stretching exercises, use of heat and ice, and anti-inflammatory medication that were suggested to her. She testified, however, that the plaintiff did not return until October, 2002, one week prior to trial. There is no other reference to medical treatment in 2002 in the evidence before the jury. There is, however, evidence that the plaintiff submitted to an independent medical evaluation on December 4, 2001, from which Avi Weiner, a physician, concluded that “[the plaintiff] still has some symptoms that might be related to the accident” and “I give her at most a 2.5 percent disability.” (Emphasis added.)

At the hearing in damages, the plaintiff requested the following jury charge: “In this case, there has been expert testimony presented to you that [the plaintiff] may require medical treatment in the future as a result of injuries caused by the defendants. Because future medical expenses do not require the same degree of certainty as past medical expenses, it is not speculation or conjecture to calculate future medical expenses that have accrued as of the trial date when there is a degree of medical probability that future medical expenses will be necessary. The cost and frequency of past medical treatment may be used as a yardstick of future expenses when it can be inferred that the plaintiff will continue to seek the same form of treatment in the future.”

The court instructed the jury on future damages as follows: “You may . . . award [economic damages for] expenses you find it reasonably likely the plaintiff will incur in the future.” The court also instructed that the jurors may evaluate for themselves “the testimony of [the] plaintiff and other fact witnesses, and determine the nature and duration of the injury and the likelihood of its continuation in the future.”

“With regard to the permanency of the plaintiffs injuries, if you find that her injuries are permanent, then you may award damages for past pain and suffering, disability and incapacity. You may award a sum of money for all damages that ... in the future, with reasonable probability, will result during the remainder of her life. Even if you find that some or all of the injuries are not permanent, you may make such an allowance of general damages for future . . . pain, suffering and incapacity as you find reasonably supported by the evidence.” The court also instructed the jury to “be careful to avoid resorting to sympathy, speculation, conjecture or guesswork — under the guise of relying on circumstantial evidence — in order to determine critical facts in the case.”

The plaintiff took an exception to the charge to the jury and argued that the “defendants’ counsel’s emphasis [that] any future economic award is based on speculation, I think reinforces the need for [the proposed charge] on future economic damages.” The court noted the plaintiffs exception.

The jury returned a verdict in the amount of $11,000 in economic damages and $10,000 in noneconomic damages. The plaintiff filed a motion to set aside the verdict, which was denied by the court on December 19, 2002. This appeal followed. Additional facts will be set forth as necessary.

We first set forth the well established standard of review for a challenge to the propriety of a jury instruction. “[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [Instructions to the jury need not be in the precise language of a request. . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003).

The plaintiff claims that the court improperly charged the jury on the issue of calculating medical expenses. Specifically, the plaintiff argues that the court should have included her request to charge and that in failing to do so, the court did not properly instruct the jury on calculating future medical expenses. The plaintiff asserts that her request to charge was particularly necessary because “(1) no expert opined a specific prediction as to estimated costs of future treatment; (2) the defendants argued that the plaintiffs suggested award for future treatment, which was based upon the prior treatment expenses, was pure speculation; [and] (3) the court specifically instructed the jury that [it] should be careful to avoid resorting to sympathy, speculation, conjecture or guesswork — under the guise of relying on circumstantial evidence — in order to determine critical facts in the case.” We disagree.

“A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given. . . . However, [instructions to the jury need not be in the precise language of a request.” (Citation omitted; internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 445-46, 782 A.2d 87 (2001). Moreover, “[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994), cert. denied, 541 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); see also Opotzner v. Bass, 63 Conn. App. 555, 560-61, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002); Rossi v. Stanback, 36 Conn. App. 328, 332, 650 A.2d 920 (1994).

The plaintiff argues that Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (1997), is the applicable law on future medical damages and that the court failed to instruct the jury in accordance with that law. She specifically relies on the following language: “[I]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . .” (Internal quotation marks omitted.) Id., 55. We note, however, that the quoted language is limited by the following phrase: “when there is also a degree of medical certainty that future medical expenses will be necessary. " (Emphasis in original; internal quotation marks omitted.) Id.; Hamernick v. Bach, 64 Conn. App. 160, 170, 779 A.2d 806 (2001) (quoting Marchetti for proposition that it is not speculation to calculate future medical expenses on basis of past medical expenses “ ‘when there is also a degree of medical certainty that future medical expenses will be necessary' " [emphasis in original; internal quotation marks omitted]). The plaintiff further argues that Marchetti provides that “[f]uture medical expenses do not require the same degree of certainty as past medical expenses”; (internal quotation marks omitted) Marchetti v. Ramirez, supra, 55; and that the “cost and frequency of past medical treatment . . . may be used as a yardstick for future expenses . . . .” (Internal quotation marks omitted.) Id., 56. The plaintiffs argument fails to take into consideration, however, the importance of the qualifying language set forth in Marchetti that the cost and frequency of past medical treatment may be used as a yardstick of future expenses “if it can be inferred that the plaintiff will continue to seek the same form of treatment in the future.” (Internal quotation marks omitted.) Id.; Doe v. Thames Valley Council for Community Action, Inc., 69 Conn. App. 850, 879, 797 A.2d 1146 (relevance of past medical treatment confined to cases in which it can be inferred plaintiff “ ‘will continue to seek the same form of treatment in the future,’ ” quoting Marchetti v. Ramirez, supra, 56), cert. denied, 261 Conn. 906, 804 A.2d 212 (2002).

The plaintiff correctly notes that the court must adapt the law of Marchetti to the present case and provide the jury with guidance in reaching the correct result. See Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 312, 819 A.2d 844 (2003). Looking at the charge in its entirety, we are not persuaded that the court failed to provide the jury adequate guidance to reach the right result. There was evidence that although the plaintiff suffered a permanent injury and future medical care likely would be necessary, she did not seek medical treatment from November, 1999, to October, 2002, one week prior to the trial.

The court instructed the jury that economic damages include, but are not limited to “the cost of reasonable medical care, chiropractic care, rehabilitation services, X rays, [magnetic resonance imaging] and so on. With respect to this case, it consists of medical bills in the amount of $10,339.02. You may award these damages to the extent you find them to be reasonable, and to have been made necessary by the plaintiffs injuries caused by the accident. You may also award damages for such of said expenses you find it is reasonably likely the plaintiff will incur in the future.” Instructions as to the consideration of future damages were given specifically in the context of consideration of proven past medical expenses. Moreover, the jury was instructed that the plaintiff “need not necessarily prove the permanency of her injuries by medical evidence,” and that the jury may “determine the nature and duration of the injury and the likelihood of its continuation in the future.” Although an instruction that included language from Marchetti and subsequent case law would have been appropriate and indeed preferable, we agree with the defendant that, taken in its entirety, the court’s instructions provided sufficient guidance in assisting the jury on the issue of future medical expenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Passaro offered the following testimony, in relevant part, regarding the plaintiffs injuries: “[The plaintiff] had a 9 percent permanent partial whole person impairment as it relates to the cervical spine as it relates to the neck. . . . [I]n terms of her knee . . . it’s a mild impairment, but it does equate to a 4 percent whole person, 10 percent lower extremity impairment . . . .”

       The parties were provided with a written copy of the charge. Discussion about the charge between the plaintiffs counsel and the court occurred, in relevant part:
      “[The Plaintiffs Counsel]: The second paragraph, which is certainly appropriate.
      “The Court: Yes.
      “[The Plaintiffs Counsel]: Says you should be careful not to resort to speculation, conjecture or guesswork. I think my proposed charge, ‘It is not speculation to base a future economic claim using the past medical expenses as a yardstick,’ is really necessary because I think without that, [the jury] might believe what I am doing is speculation when I propose . . .
      “The Court: Okay. What else did you want to bring to my attention?”

       Although the plaintiff did not include that language in her brief, she did include it in her proposed request to charge.


author: PETERS, J.

text:
    THOMAS MAY, EXECUTOR (ESTATE OF ELEANOR MAY) v. JOHN RETARIDES ET AL.
    (AC 24337)
    Bishop, West and Peters, Js.

      Argued March 29
    officially released June 8, 2004

      Thomas J. Weihing, for the appellant (plaintiff).

      Ronald F. Bozelko, for the appellees (named defendant et al.).
   Opinion

PETERS, J.

Under General Statutes § 45a-98 (a) (3), a Probate Court is authorized to “determine title . . . to any . . . intangible property that constitutes, or may constitute, all or part of any . . . decedent’s estate . . . .’’In this case, the intangible property consists of the proceeds of a homeowners’ insurance policy that were paid as compensation for the loss of personal property in a fire that occurred on the property of the decedent. The principal issue is whether the estate has a priority claim to recover the decedent’s losses or whether all of the proceeds must be distributed, pro rata, to compensate for additional losses suffered by other family members who also resided at the property. Both the Probate Court and the trial court resolved this issue in favor of pro rata distribution. The estate has appealed. We affirm the judgment of the trial court.

The plaintiff, Thomas May, executor of the estate of his mother, Eleanor May (decedent), appealed to the Superior Court from a decree of the Probate Court for the district of Stratford. The plaintiff challenged the validity of that court’s decree ordering fire insurance proceeds to be apportioned, 26 percent to the decedent and 74 percent to the defendants John Retarides and Katherine Retarides for personal property losses resulting from a fire on premises owned by the decedent. The defendants are two of the decedent’s relatives, who resided at the property and who also suffered fire losses. The trial court, sitting as a Probate Court; In re Andrews’Appeal from Probate, 78 Conn. App. 429, 431, 826 A.2d 1260 (2003); upheld the order for pro rata distribution.

In his appeal, the plaintiffs principal argument is that the judgment of the trial court should be reversed because only the decedent was insured under the policy. Alternatively, the plaintiff argues that, if apportionment of the proceeds was warranted, then the apportionment formula adopted by the Probate Court was improper.

The parties stipulated to many of the relevant facts. The decedent was the sole owner of a residence located at 330 Castle Drive in Stratford. The decedent’s adult daughter, Katherine Retarides, and the daughter’s two sons, John Retarides and James Retarides, have resided there since 1983.

In 1998, the decedent obtained a homeowners’ insurance policy issued by Royal Indemnity Company that provided coverage of $70,000 for the loss of personal property. The declarations page listed the decedent as the named insured.

This policy was in effect on May 14, 2000, when the insured residence and personal property located therein were severely damaged by a fire. The fire was a covered peril under the homeowner’s insurance policy. As a result of the fire, the decedent and the defendants lost personal property valued at $144,284.56.

Before her death, the decedent hired Biller Associates, a public insurance adjuster, to adjust the fire loss on her behalf. In due time, the insurer issued a check to the estate in the amount of $70,000.

The Probate Court admitted the decedent’s will to probate and appointed the plaintiff as executor of her estate. Asserting that the insurance proceeds should be distributed in accordance with the decedent’s will, the plaintiff declined to share any of these proceeds with the defendants. Both the Probate Court and the trial court agreed with the defendants that the plaintiffs position was untenable.

The trial court concluded that the insurance policy provided coverage for the loss of the defendants’ personal property in the fire that occurred on May 14,2000. It further concluded that the insurance proceeds, which were insufficient to cover all the personal property losses that had incurred, were best allocated by using the pro rata distribution formula adopted by the Probate Court. Accordingly, the court awarded Katherine Retarides, $44,800 and John Retarides, $7000. The estate received $18,200.

In this appeal, the plaintiff challenges the validity of each of the trial court’s conclusions. We will consider each of these challenges separately.

I

PARTIES INSURED UNDER THE POLICY

The plaintiff first challenges the trial court’s conclusion that the defendants were insured parties under the terms of the homeowners’ insurance policy obtained by the decedent. Specifically, the plaintiff argues that, because only the decedent was described as a named insured in the policy and only she was the payee of the proceeds check, she was the only person who was insured by the policy. We agree with the trial court that, read in its entirety, the insurance policy provides to the contrary.

The plaintiffs argument requires analysis of the terms of the insurance policy. In the absence of a claim of ambiguity, the interpretation of an insurance contract presents a question of law. We will, therefore, undertake a de novo review of his position. See Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004).

In this case, although only the decedent is identified as the named insured, the policy provides coverage to other persons in the section titled “Coverage C.” The policy states that “[w]e [the insurer] cover personal property owned or used by an ‘insured’ while it is anywhere in the world . . . .” The policy then defines “insured” as “you [the named insured] and residents of your household who are: a. Your relatives . . . .” (Emphasis added.)

Because the defendants were members of the decedent’s family who resided at the decedent’s property, the trial court concluded that each of the defendants was an insured under the policy. The court noted that the coverage provision did not distinguish between a “named insured” and an “insured.”

On appeal, the plaintiff has not taken direct issue with the trial court’s analysis. He has not questioned the accuracy of the trial court’s underlying factual findings of residency or consanguinity as it relates to either of the defendants. He has not asserted that the relevant language in Coverage C is ambiguous. Indeed, the plaintiffs brief is surprisingly silent about the implications of this policy language.

The plaintiff asks this court to rule in his favor on the basis of three other provisions in the insurance policy. According to the plaintiff, these provisions demonstrate that the defendants did not qualify as insured persons. Like the trial court, we are not persuaded.

The plaintiff first points to another section in Coverage C, which states that “[a]t your request, we will cover personal property owned by: 1. Others while the property is on the part of the ‘residence premises’ occupied by an ‘insured’ . . . .’’No evidence was offered at trial that the decedent had purchased such additional coverage. On this state of the record, the plaintiff maintains that the defendants should be characterized as “others” and therefore had no insurable interest.

Although the policy does not define “others,” we conclude that the plaintiffs argument is unpersuasive. The policy provision itself expressly distinguishes “others” from “insureds.” In relevant part, the policy provides that coverage of the personal property of “others” depends on a showing that the property was located at the residence of an “insured.” Because the defendants fall squarely within the policy description of those who are insured, they are not “others.”

Alternatively, the plaintiff directs our attention to a policy condition describing the responsibilities of the insurer in the event of the death of the named insured during the term of the policy. This section provides that, “[i]f any person named in the Declarations or the spouse, if a resident of the same household, dies: a. We insure the legal representative of the deceased but only with respect to the premises and property of the decedent covered under the policy at the time of death

In the plaintiffs view, this language indicates that the coverage provided by the policy is limited to property owned by the decedent. The plaintiffs reasoning is flawed in two significant respects. First, the plaintiff overlooks the fact that, in this case, the claim for coverage concerns events that predated the death of the named insured, the decedent, and was submitted to the insurer prior to the death of the named insured. This provision therefore is irrelevant on its face. Second, the provision does not purport to provide guidance about the rights of insureds other than the named insured in proceeds arising out of a covered event predating the death of the named insured. In effect, the provision simply defines the successor insured for whom the policy provides coverage for the remainder of its term.

Finally, the plaintiff attaches significance to a sever-ability clause in the insurance policy, which states that “[t]his insurance applies separately to each ‘insured.’ ” According to the plaintiff, this language indicates that each insured had a separate duty to comply with the terms of the policy in order to claim coverage. In the plaintiffs view, because only the decedent hired the public insurance adjuster and only she provided him with an inventory of the property losses on the premises, the defendants are not entitled to a share of the insurance proceeds because they failed to perfect their claim to a share of the proceeds. We disagree.

The plaintiff overlooks the relevant terms of the policy with respect to a claim for a loss of covered personal property. The policy requires that someone must notify the insurer, must protect the property from further damage and must prepare an inventory of the damaged property. The policy expressly assigns these responsibilities to the named insured. It states that “you must see that the following are done.” In its definitional section, the policy defines “you” as a reference to the “named insured.” As a result, the decedent, and not the defendants, had the sole right and obligation to file such a claim. The defendants cannot be faulted for failing to do what they were not required to do.

The plaintiff also argues that the decedent’s engagement of the public insurance adjuster compels the inference that the claim was submitted solely on her behalf. That inference is unwarranted. As the trial court noted, while the decedent’s own property loss was only $37,513.99, the recovery from the insurance company was for the maximum policy limit of $70,000. The court concluded, and we agree, that “[i]t is not logical for the court to infer that the insurance company would overpay the claim for losses of the decedent’s personal property . . . .” Rather, the court correctly inferred that the insurer made a payment of $70,000 after the submission of claims for $144,284.56, the stipulated loss of all three parties.

In sum, we find that the plain language of the insurance policy demonstrates that the defendants had insurable interests. The fact that the defendants might have obtained their own insurance does not extinguish their rights under this policy. None of the provisions cited by the plaintiff calls into question the plain meaning of Coverage C. “[C]ourts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” (Internal quotation marks omitted.) Galgano v. Metropolitan Property & Casualty Ins. Co., supra, 267 Conn. 519.

II

DISTRIBUTION OF PROCEEDS

The plaintiff also argues that the trial court abused its discretion in its allocation of the insurance proceeds among the estate and the defendants. Rather than dividing the proceeds pro rata, he maintains that the court should have recognized that the estate had a priority claim because the decedent had obtained the insurance policy and was described therein as the named insured. We are not persuaded.

As an initial matter, we note that the fund created by the insurance proceeds will not be further enlarged by future payments from the insurer. It is undisputed that the policy authorized payment to the decedent and that the check was in fact payable to her. The insurer’s payment of the full amount of coverage to the decedent’s estate discharged its obligations to all of the insured parties.

We further note that there is no dispute about the applicability of the principle of equitable distribution that the trial court invoked. The plaintiff does not dispute the underlying proposition that the proper apportionment of the insurance proceeds required the trial court to exercise its equitable discretion. See Century Indemnity Co. v. Kofsky, 115 Conn. 193, 200, 161 A. 101 (1932).

Under such circumstances, the scope of our appellate review is limited. “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Our standard of review is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Tuxis-Ohr’s, Inc. v. Gherlone, 76 Conn. App. 34, 47, 818 A.2d 799, cert. denied, 264 Conn. 907, 826 A.2d 179 (2003).

The trial court described the proceeds generated by the insurance policy as a “common fund.” The court referred to the equitable principle that, if a common fund is insufficient to pay the claims of all the participants in the fund in full, the fund should be distributed pro rata. Applying this principle, the court awarded $18,200 to the plaintiff, $44,800 to the decedent’s daughter and $7000 to the decedent’s grandson.

The plaintiff claims that the trial court’s distribution of the insurance proceeds is inequitable in light of the primary role that the decedent played in obtaining the insurance policy and in hiring the claims adjuster to collect on the policy. The crux of the plaintiffs claim is that the decedent, as the named insured, had the first claim on the insurance proceeds that should be honored before any distribution of the funds to the defendants. In other words, he maintains that the decedent’s property loss claim should have been paid in full before any payment to anyone else. He has not, however, provided either a legal or a factual basis to support this claim.

As a matter of law, the plaintiff has not cited any authority for the proposition that a named insured should receive an enhanced priority to the detriment of other insureds under an insurance policy. Yoshida v. Security Ins. Co., 145 Or. 325, 26 P.2d 1082 (1933), the case on which he relies, is readily distinguishable. In Yoshida, a landlord, who was not an insured, was not permitted to recover insurance proceeds that were distributed to tenants after a fire at a leased building. Id., 336. In contrast, in this case, as we have already determined, the defendants were insured parties.

In the absence of more persuasive authority, the trial court had discretion to distribute the proceeds in accordance with the equitable principle of pro rata distribution. The plaintiff does not dispute the relevance of Century Indemnity Co. v. Kofsky, supra, 115 Conn. 193, an interpleader action, in which several injured parties sought to recover damages from a tortfeasor’s automobile insurance policy that was insufficient in amount to satisfy all their claims. Id., 195-96. The Supreme Court held that the proceeds should be apportioned between the claimants in accordance with the equitable principle of pro rata distribution. Id., 200.

As a matter of fact, the plaintiff has provided no basis for departure from pro rata distribution under the circumstances of this case. He has not attempted to make a factual showing that the decedent’s claim was entitled to priority status because she had incurred cognizable costs associated with obtaining insurance and filing a claim at the outset before any such pro rata distribution. Such costs might have included the payment of the yearly policy premiums or the cost of finding a proper public insurance adjuster. The plaintiffs bare assertion that the decedent provided special benefits to the defendants does not prove his case for special equitable recognition of his claim to the insurance proceeds.

Furthermore, on the present record, the court reasonably might have inferred that the defendants would have recognized an equitable obligation to share proven costs associated with the collection of insurance proceeds. Indeed, the defendants agreed, at oral argument, that they bore financial responsibility for a part of the fee charged by the public insurance adjuster who obtained the insurance proceeds from the insurer.

In sum, the trial court properly interpreted the insurance policy at issue to provide fire insurance protection for the defendants as well as the decedent. It properly exercised its discretion in apportioning the proceeds generated by the insurance policy in accordance with the equitable principle of pro rata distribution.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants initiated the present action by filing in the Probate Court a motion requesting “payment of funds wrongfully held by the executor.”

       John Retarides is the grandson of the decedent, and Katherine Retarides is her daughter. The plaintiff named other beneficiaries as defendants. We refer in this opinion to John Retarides and Katherine Retarides as the defendants.

       James Retarides is not a party to this appeal.

       Of this sum, the decedent’s personal property loss was $37,513.99, her daughter’s loss was $92,242.11 and her grandson’s loss was $14,428.46.

       Katherine Retarides cosigned the contract with the decedent retaining Biller Associates. Nevertheless, the parties have stipulated that the decedent hired the adjuster.

       Apparently, these calculations did not take into account Biller Associates’ fee of 10 percent of the proceeds, which evidently is the subject of other pending litigation.

       At various occasions, the plaintiff has also argued that the estate had a right to all of the insurance proceeds despite the fact that the decedent’s own losses were only $37,513.99. The plaintiff has not explained how an insured can require an insurance company to pay any amount in excess of the loss that the insured has suffered. “[F]ire insurance is a contract of indemnity against actual loss sustained by the insured, in an amount not exceeding that stipulated in the policy .... 1 G. Couch, Insurance (2d Ed. Rev. 1984) § 1.52.” (Emphasis added; internal quotation marks omitted.) Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 430, 689 A.2d 1154 (1997). The policy in this case expressly provides: “Even if more than one person has an insurable interest in the property covered, we will not be liable in any one loss: a. To the ‘insured’ for more than the amount of the ‘insured’s’ interest at the time of the loss . . . .”

       Indeed, it is not clear from the record whether the decedent paid either sum. At trial, both John Retarides and George Retarides, the former husband of Katherine Retarides, testified that they had paid a portion of the yearly premium. Neither side produced any documentary evidence.