author: BISHOP, J.

text:
    COMPASSIONATE CARE, INC. v. THE TRAVELERS INDEMNITY COMPANY
    (AC 34963)
    DiPentima, C. J., and Robinson and Bishop, Js.

      Argued September 16
    officially released December 31, 2013

      Thomas W. Bucci, for the appellant (plaintiff).

      Paul Stoughton, with whom, on the brief, was Sean M. Nourie, for the appellee (defendant).
   Opinioy,

BISHOP, J.

The plaintiff, Compassionate Care, Inc., appeals from the judgment of the trial court rendered in favor of the defendant, The Travelers Indemnity Company. The plaintiff filed a two count complaint in which it sought, as to the first count, a declaratory judgment that the defendant is legally obligated to provide the plaintiff with a workers’ compensation insurance policy for an estimated annual premium of $1069 and that the plaintiff is not responsible for paying an increased premium of $103,813, as assessed by the defendant. In its second count, the plaintiff sought monetary damages for the defendant’s alleged breach of the covenant of good faith and fair dealing. In response, the defendant filed a two count amended counterclaim sounding in breach of contract based on, inter alia, the plaintiffs alleged failure to pay the premium ultimately claimed by the defendant and requesting the dismissal of the plaintiffs complaint, damages and other relief. The court found for the defendant on the plaintiffs complaint and for the defendant on its counterclaim. On appeal, the plaintiff claims that the trial court incorrectly found that: (1) with respect to the first count of its complaint (A) the health care professionals (HCPs) who contracted with the plaintiff were its employees, and not independent contractors; (B) the plaintiff would be responsible for providing workers’ compensation benefits to the HCPs pursuant to General Statutes § 31-292; and (2) the defendant had a contractual right to charge the plaintiff a higher policy premium based on the classification of the HCPs as employees and on its potential liability to provide workers’ compensation insurance for the HCPs. We conclude that the court incorrectly determined that the HCPs were the plaintiffs employees and that, as such, the plaintiff would be responsible for providing workers’ compensation benefits under § 31-292. Nonetheless, we conclude that the defendant had the contractual right to charge the plaintiff a higher premium, based on its risk exposure to provide workers’ compensation coverage for the HCPs. Accordingly, we reverse the judgment of the trial court as to the first count of the plaintiffs complaint, and we affirm the judgment of the trial court with respect to the second count of the plaintiffs complaint and the defendant’s counterclaim.

The following undisputed facts, as gleaned from the record, are relevant to our discussion of the issues on appeal. The plaintiff is in the business of making referrals of HCPs, including registered nurses and nurse’s assistants, to private individuals and organizations such as nursing homes. The HCPs, who must be properly licensed, submit applications to the plaintiff for the purpose of becoming part of the plaintiffs referral list. As part of the application process, the HCPs are subject to background checks and are also required to complete a “Pre-employment Physical Examination” form. Based on the requests it receives from client health care facilities, the plaintiff offers assignments to the HCPs, who are free to accept or reject the offered position without penalty. The plaintiff does not own, operate, or manage any of the third-party entities to which the HCPs are assigned. Although the HCPs contract with the plaintiff, they are free to work for other agencies or entities while remaining on the plaintiffs referral list. Once they are put on the plaintiffs referral list, however, the HCPs are not allowed to accept employment positions directly from the plaintiffs client companies. Similarly, and by agreement with the plaintiff, its client companies are also prohibited from directly hiring any HCP who is on the plaintiffs referral list unless it informs the plaintiff, in writing, ninety days in advance of its intent to employ an HCP. If a client fails to notify the plaintiff in advance of hiring an HCP directly, the client must pay the plaintiff liquidated damages as delineated in its contract with the plaintiff.

After an HCP has accepted a work placement referral from the plaintiff, the HCP is responsible for completing time sheets to record the hours he or she has worked for a client company. The time sheets are then submitted by the HCPs to the plaintiff, which then bills the third-party clients based on the reported hours worked and an hourly rate previously agreed upon by the plaintiff and third-party client. The hourly rate is actually an amount greater than the fee paid to an HCP because the rate includes a fee paid to the plaintiff by the client company for its services in referring an HCP to a client company. The plaintiff then pays the HCP directly, based on the hourly rate set by the client company and the plaintiff and agreed to by the HCP. The plaintiff does not withhold any taxes from the payment made to the HCP. At the end of each calendar year, the plaintiff issues a 1099 tax form to each HCP who provided services to a client company pursuant to this arrangement during the calendar year.

Significantly, the plaintiff has no role in supervising or evaluating the work performed by the HCPs. Nor did the court receive any evidence that the agreements made between the plaintiff and HCPs or the agreements between the plaintiff and client companies contained any provisions authorizing the plaintiff to supervise or direct the manner in which an HCP performs services to a client company. Rather, the plaintiff, at the beginning of each work assignment, informs the HCP of the specific requirements of the assignment, based on information received by the plaintiff from a client company, and informs the HCP of the hourly rate he or she will receive based on the determination of the plaintiff and the client company. The record does reflect, however, that although the plaintiff plays no role in supervising the manner in which an HCP performs his or her services, the plaintiff does retain the right to remove an HCP from an assignment if the third-party client so requests. Reciprocally, the HCP also has the ability to terminate his or her relationship with the plaintiff at any time.

In 2006, the plaintiff attempted to obtain workers’ compensation insurance for its office staff, which, at the time, consisted of a small number of clerical employees. Using the services of an insurance broker, the plaintiff submitted applications to several different insurance companies. All of the plaintiffs applications were declined, however, based on the concern that the insurer would be responsible for claims involving the HCPs because their status as independent contractors was uncertain.

The plaintiff then applied for workers’ compensation insurance for its office staff through the assigned risk market, operated by the National Council on Compensation Insurance, Inc. (council). The application, dated May 15,2006, contained an estimated premium of $1031, which had been determined by the broker based on information supplied directly by the plaintiff regarding its office staff. Thereafter, the plaintiff received a full policy binder from the council on May 26, 2006, which identified the defendant as the assigned carrier for coverage beginning on June 1, 2006. Soon after July 5, 2006, the plaintiff received a copy of the actual workers’ compensation insurance policy issued by the defendant. The policy contained a provision that provided for an audit of the insured’s records and also alerted the insured that “[i]nformation developed by audit will be used to determine final premium.”

Thereafter, the defendant asked the plaintiff to comply with supplementary information requests. Specifically, the defendant sent the plaintiff a “Supplementary Underwriting Information Request” on June 16, 2006, asking for additional information such as tax forms and wage reports, the completion of a contractor questionnaire, and a copy of the plaintiff’s brochure.

On July 12, 2006, the plaintiff received a letter from the defendant asking it to provide valid proof that a specified list of HCPs associated with the plaintiff had provided the plaintiff with certificates that they carried workers’ compensation insurance coverage for themselves. The defendant sought this information in order to complete its underwriting file. Although the plaintiff was able to provide the defendant with professional liability insurance certificates for each named individual, it was unable to provide workers’ compensation insurance certificates for any of them. Soon thereafter, however, the plaintiff received another letter from the defendant requesting that the plaintiff set up an appointment with one of the defendant’s auditors pursuant to the policy’s provisions that provide for such audits as a vehicle to assist the defendant in determining the amount of the premium to assess the plaintiff. Based on its ensuing audit, the defendant determined that the HCPs fell within Connecticut’s definition of employee and would thus be afforded benefits under the Workers’ Compensation Act (act). General Statutes § 31-275 et seq. Accordingly, on November 21, 2006, the defendant added an endorsement to the policy that reflected the changed premium basis and a new estimated premium of $89,898. Following further discussions between the parties, the defendant issued the plaintiff a premium bill with an adjusted amount of $66,353 due on December 7, 2006. When the plaintiff refused to pay the higher premium, the defendant cancelled the policy, effective on December 6, 2006.

The plaintiff commenced the present action on March 8, 2007, by filing a two count complaint in which it sought, as to the first count, a declaratory judgment that the defendant is legally obligated to cover the plaintiff with the policy for the estimated premium of $1069 and that it is not responsible for paying an increased premium of $103,813 and, in the second count, monetary damages for the defendant’s alleged breach of the covenant of good faith and fair dealing. The defendant filed its operative counterclaim on November 10, 2009, alleging two counts of breach of contract based on the plaintiffs failure to remit the final premium requested. The counterclaim additionally sought dismissal of the plaintiffs complaint and monetary relief. Following a two day trial to the court and the submission of posttrial briefs, the court issued its memorandum of decision on August 3, 2012, in which it found that the HCPs were employees of the plaintiff and, therefore, that liability might be imposed on the defendant to defend any workers’ compensation claims for benefits by the HCPs. The court also found that § 31-292 imposed liability on the plaintiff to provide workers’ compensation benefits to the HCPs as workers on temporary loan. On that basis, the court thus rendered judgment in favor of the defendant as to both counts of the plaintiffs complaint and as to the defendant’s counterclaim in the amount of $66,353. The plaintiff then filed the present appeal. Additional facts will be set forth as necessary.

I

With respect to count one of its complaint, the plaintiff first argues that the court improperly determined that the HCPs were the plaintiffs employees. The plaintiff next claims that in its analysis of the HCPs’ status as employees, the court incorrectly concluded that the plaintiff would be responsible for providing workers’ compensation benefits to the HCPs pursuant to § 31-292. We agree with the plaintiff.

A

The plaintiff first claims that the court improperly determined that the HCPs were the plaintiffs employees and not independent contractors. We agree with the plaintiff.

We first set forth the applicable standard of review that governs the plaintiffs first claim. “The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact. . . . Thus, the plaintiffs claim requires us to review a finding of fact. ... A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 727-28, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). Accordingly, we review the trial court’s determination that the HCPs are employees as a question of fact. Doing so, our query must be whether the court’s conclusions were clearly erroneous.

While we defer to a trial court’s findings of fact when they are supported by the record, our deference is not unlimited. Indeed, as to the factual question for the court as to whether the HCPs are employees or independent contractors, decisional law aids our analysis. As a general proposition: “The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. ... It is the totality of the evidence that determines whether a worker is an employee under the act, not subordinate factual findings that, if viewed in isolation, might have supported a different determination. . . . For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. . . . Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive. While the method of paying by the hour or day rather than by a fixed sum is characteristic of the relationship of employer and employee, it is not decisive. . . . Nor is it decisive that the injured party uses his own tools and equipment. . . . The retention of the right to discharge, upon which the finding is silent, is a strong, but again not a controlling, indication that the relationship is one of employment. . . . Other persuasive factors that a person is holding oneself out to be an independent contractor include the issuance of 1099 federal tax forms . . . and engaging independently in business with third parties and doing business apart from the putative employer under a different name.” (Citations omitted; internal quotation marks omitted.) Id., 728-29.

Put succinctly, “ [o]ne is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained. . . . The controlling consideration in the determination whether the relationship of master and servant exists or that of independent contractor exists is: Has the employer the general authority to direct what shall be done and when and how it shall be done— the right of general control of the work?” (Citation omitted; emphasis added.) Kaliszewski v. WeathermasterAlsco Corp., 148 Conn. 624, 629, 173 A.2d 497 (1961). In contrast, “[a]n independent contractor relinquishes control to the entity that hires him or her of the results of his or her work only . ...” 2 A. Sevarino, Connecticut Workers’ Compensation After Reforms (J. Passaretti ed., Centennial Ed. 2012), § 4.13, p. 427.

With those principles in mind and recognizing that our task is not to decide whether the HCPs are employees or independent contractors but, rather, to assess whether the trial court reasonably could have concluded that they are employees, we review the relevant evidence available to the court in making its decision.

On the basis of our review, we conclude that the evidence presented at trial was insufficient to support the court’s finding that the HCPs were the plaintiffs employees because there was no evidentiary basis for the court to conclude that the plaintiff had the authority to control the mode or manner in which the HCPs performed their services for the health care facilities to which they had been sent by the plaintiff.

In Latimer v. Administrator, 216 Conn. 237, 579 A.2d 497 (1990), our Supreme Court considered a trial court determination that certain health care registry workers (workers) were employees and not independent contractors. While the legal setting in Latimer was not identical to the present case, the court’s analysis on review contains helpful guidance. In Latimer, the issue was whether the plaintiff employed the workers as employees under the Unemployment Compensation Act, thus owing contributions to the unemployment compensation fund. See id., 239. In agreeing with the conclusions of the administrator of the Unemployment Compensation Act that the workers were the plaintiffs employees, the court focused, inter alia, on the administrator’s findings that: (1) the workers reported their day-to-day activities to the plaintiff; (2) the plaintiff retained the right to discharge any workers; (3) the plaintiff established the workers’ schedules; (4) the plaintiff directed the workers to perform personal errands and to adhere to specific instructions concerning his care; (5) any needed equipment or materials were furnished by the plaintiff himself; and (6) the workers were not in a position to realize a profit or suffer a loss based on the service that they provided but were, instead, paid an hourly wage directed by the plaintiff. Id., 250. In affirming the judgment of the trial court, which upheld the decision of the administrator, our Supreme Court ultimately determined that the fact that the workers reported their day-to-day activities to the plaintiff “embodies the logical inference that the reporting and monitoring had a purpose and that, if the care given the plaintiff were unsatisfactory, [the plaintiff] could, and would, intervene and take corrective measures.” Id., 250-51. The court opined: “That right of intervention, which we believe clearly exists under the facts, evinces a right to control and direct the [workers] by the recipient of their services. The reporting of their day-to-day activities to [the plaintiff] by the [workers] and the monitoring of those activities by [the plaintiff], who possessed the right to discharge the [workers], is hardly indicative of the degree of independence that distinguishes an independent contractor from an employee. That the [workers] were permitted to perform their day-to-day duties without interference so long as those duties were performed in a satisfactory manner does not militate against a conclusion of control.” Id., 251.

Conversely, in the present case, while the plaintiff did retain the ability to terminate the services of an HCP at any particular client’s facility, the plaintiff had no authority to control the manner in which the HCPs performed their services for individual clients, nor did the plaintiff have any ability to affect the manner of services except by termination of the assignment. Once an HCP accepted an assignment, the HCP provided his or her own transportation, tools, and supplies and controlled the manner in which they cared for the client. Additionally, the record reveals that there was no evidence that the plaintiff had any ability to supervise the HCP’s manner of work or even to intervene to take any corrective action. Any instructions given to the HCP at the beginning of an assignment regarding the scope of the HCP’s duties were generated by the client companies and merely passed on by the plaintiff to the HCP as part of explaining the nature of the duties required by the assignment. Nothing in the record revealed that the plaintiff required or provided any training on how to care for a client, nor did the plaintiff provide the HCPs with any guidance on how to address different situations in the nursing context such as, for example, how to interact with a patient or properly care for a wound. The HCPs did not report back to the plaintiff either dining the course of or after the completion of an assignment. Finally, as to the incidents of the plaintiff’s relationship with the HCPs, the court heard no evidence that the plaintiff had any company policies to which the HCPs were required to adhere in discharging their responsibilities to client facilities.

While this court acknowledges that the plaintiff’s ability to remove an HCP from an assignment may evince some measure of control over the HCP, we do not believe this means of indirect influence alone provides a sufficient basis for the trial court’s conclusion that they are the plaintiffs employees because such an influence falls too short of evidence of the right to control the mode and manner in which the HCPs performed their duties. Evidence of the plaintiffs inability to control the mode and manner of the HCP’s work performance should reasonably be considered with other evidence of the relationship between the plaintiff and the HCPs. Here, we note as significant that: the plaintiff issued 1099 forms and not W-2 forms to the HCPs, treatment accorded independent contractors; the plaintiff identified the HCPs as independent contractors in its contracts with both the HCP and its third-party clients; and the HCPs retained the right to work for other referral agencies or employers while still contracting with the plaintiff. These factors, taken together, do not provide evidentiary support for the trial court’s determination that the HCPs are employees.

In its memorandum of decision, the court found that “while the plaintiff may not exercise its right to control the means and methods of work of the HCP, the plaintiff has the right to do so.” This conclusion by the court, however, lacks evidentiary support because there is no evidence in the record to indicate that the plaintiff either exercised or had the right to exercise control over the means and methods of the HCP’s work. In light of the foregoing, we conclude that the court’s determination that the HCPs are employees was clearly erroneous.

B

The plaintiff next argues that the court incorrectly concluded that it would be responsible for providing workers’ compensation benefits to the HCPs pursuant to § 31-292. We agree with the plaintiff.

Whether § 31-292 applies to the facts of this case raises a question of statutory construction, which is a “[question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) State v. Marsh & McLennan Cos., Inc., 286 Conn. 454, 464, 944 A.2d 315 (2008).

Section 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” We believe § 31-292 is inapplicable to the present dispute because that statute assumes that the worker is, in fact, an employee, and merely states that one who hires out an employee on a temporary basis remains liable for that person’s workers’ compensation coverage during the period the worker is on loan. In short, because the statute begs the question as to the present dispute, its provisions are not an aid to our analysis. See 2 A. Sevarino, supra, § 4.12, p. 424. (“given the temporary nature of the lending or letting for hire to another, the required employer-employee relationship between the injured worker and the lending employer must not only have existed immediately before the lending occurred but must also have been contemplated to have resumed after the lending”).

Put simply, § 31-292 is meant to address an employer’s liability for workers’ compensation coverage in instances where the employee may not be working for the employer at the time of injury. See Derrane v. Hartford, 295 Conn. 35, 45, 988 A.2d 297 (2010) (“the act generally renders employers responsible for injuries sustained by their employees, regardless of where those injuries occurred, whenever those employees are acting within the scope of their employment, even when such employees are temporarily lent to other entities” [emphasis added]). Based on our analysis of the language and import of § 31-292, we conclude that the court incorrectly determined that its provisions would have obligated the plaintiff to provide workers’ compensation benefits to the HCPs.

II

The plaintiff finally claims that the court erred in determining that the defendant had a contractual right to charge the plaintiff a higher policy premium based on its classification of the HCPs as employees. Specifically, the plaintiff argues that because it only signed an application for assigned risk coverage, the defendant’s argument that it could still charge the plaintiff an increased premium based on the “payroll and all other remuneration paid or payable during the policy period for all services of . . . [a]ll other persons engaged in work that could make [the defendant] hable under . . . this policy” is misplaced. We are not persuaded.

The following additional facts are relevant to the resolution of the plaintiffs final claim. At trial, Steven Kidd, an audit manager for the defendant, testified concerning the defendant’s audit procedures for workers’ compensation insurance policies. Kidd testified that when an application is submitted to the council and given to the defendant as the assigned risk carrier, the defendant typically orders an audit survey at the beginning of the policy period to verify the defendant’s exposure and to evaluate the insured’s business operations. After the end of the policy period, the defendant then conducts a final audit to verify the actual premium owed based on the appropriate remuneration figures and rate classifications. Upon completing the initial audit of the plaintiffs business operations, Kidd stated that the defendant became aware that it had “additional exposure” beyond what was provided for in the premium estimate. In essence, although the premium estimate—which was calculated by the plaintiffs broker based on information provided by the plaintiff—indicated coverage only for the plaintiffs office staff, the defendant’s audit indicated that the HCPs were also part of its exposure to risks entailed in insuring the plaintiff. Kidd testified that upon discovering the additional risk exposure, the auditor submitted the audit file to the underwriter, who then endorsed the policy to account for the defendant’s additional exposure and charged an accurate premium accordingly. In addition to describing the defendant’s audit procedures, Kidd also testified that the defendant’s duty to defend under the policy applied to all claims made against the policy, regardless of the claimant’s classification as an employee or independent contractor. Kidd elaborated by stating that “the policy covers all [of] the workers’ compensation and employer’s liability. ... So, regardless of what we charged in premium, we’re . . . insuring all those liabilities out there and in this case we determined that there were much more—we had much more of a liability than was disclosed on the . . . application.” When asked if an employer seeking workers’ compensation coverage could do so only for select employees, Kidd replied “No. . . . [Essentially the policy is written to cover the liabilities of . . . the named insured.”

We first set forth the well established legal principles that govern insurance coverage disputes and the applicable standard of review that governs the plaintiffs final claim. “ [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms. . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. . . .

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . .

“[A] trial court’s resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard. . . . Such a finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [A] finding is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Thus, [i]t is well established that [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) National Fire Ins. Co. of Hartford v. Beaulieu Co., LLC, 140 Conn. App. 571, 577-78, 59 A.3d 393 (2013).

Our decision in National Fire Ins. Co. of Hartford provides guidance for our analysis of this claim. In National Fire Ins. Co. of Hartford, the defendant appealed from the underlying civil action in which the plaintiff successfully sought unpaid workers’ compensation insurance coverage premiums. Id., 573. The dispute between the parties concerned whether certain workers should have been included in the premium recalculation, which increased the premiums by an additional $46,529, based on the plaintiffs audit of the defendant’s business operations. Id., 575-76. In its memorandum of decision, the trial court stated: “[T]he plaintiff is entitled to include in its premium recalculation all persons or entities, whether employees of the defendant or not, for whom the plaintiff may be liable to pay workers’ compensation benefits, unless the defendant proves that such coverage was otherwise provided. . . . [E]ven if all of the . . . [workers] were independent contractors rather than employees, the plaintiff was entitled to additional premiums for their work with the defendant because they all fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits.” (Internal quotation marks omitted.) Id., 576-77. Although, on appeal, this court concluded that the trial court did not make an express finding that the workers at issue were “employees,” we nevertheless found that it was sufficient for the court to have determined that the workers in question fell within the “penumbra” of the policies because they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits. See id., 579-80. In sum, the insurer in National Fire Ins. Co. of Hartford was entitled to assess a premium based on its exposure or risk of having to cover certain employees even if it could later be determined that they were ineligible for workers’ compensation as employees.

Similarly, the circuit court decision m. Hartford Accident & Indemnity Co. v. Capital Home Improvement Co., Inc., 2 Conn. Cir. Ct. 664, 205 A.2d 192 (1964), lends further support to the defendant’s contention that it was contractually entitled to receive the increased premium regardless of whether or not the HCPs actually were employees. In finding for the plaintiff insurer, the court in Hartford Accident & Indemnity Co. found that a workers’ compensation policy with provisions similar to those in the present case, was “a contractual right (a right which the plaintiff could and did provide for in the policies) to be compensated for the possibility that a claim or suit may render the plaintiff hable. The existence of the possibility of such liability and the assumption of such a risk, aside from the question of, or a final adjudication as to, whether or not the installers were independent contractors, entitled the plaintiff to charge a premium therefor. It is the assumption of this burden of paying possible compensation that gives the plaintiff the right to charge premiums. . . . The responsibility assumed and the risk and inconvenience to which the plaintiff was exposed, of themselves, constituted a consideration for the premium charged.” (Citation omitted.) Id., 669-70. The court continued: “by the terms of the policies the plaintiff agreed to defend any proceeding instituted against the defendants by installers seeking benefits thereunder. This is a positive undertaking by the plaintiff requiring it to expend funds in so doing. The plaintiffs duty to defend has a broader aspect than its duty to indemnify. There is a distinction between liability and coverage. The obligation of the plaintiff to defend does not depend on whether the injured party will successfully maintain a cause of action. The policy requires the plaintiff to defend irrespective of the ultimate outcome.” Id., 670.

In the present case, the workers’ compensation insurance policy issued by the defendant contains multiple provisions that establish the defendant’s risk exposure concerning the plaintiffs business operations. Perhaps most telling is the defendant’s obligation to indemnify the plaintiff, contained in part one, section C of the policy, titled, “We Will Defend,” which states in relevant part: “We have the right and duty to defend at our expense any claim, proceeding or suit against you for the benefits payable by this insurance.” Under this provision of the policy, if an HCP filed a claim against the plaintiff for workers’ compensation benefits, the defendant would be contractually required to defend any claim at their expense. If, for example, the defendant were not entitled to collect a premium from the plaintiff based on its risk exposure but, instead, based solely on the plaintiffs contentions that the HCPs were independent contractors, the defendant would be indemnifying the entirety of the plaintiffs risk in exchange for little compensation. This duty to defend would require the defendant to represent the plaintiff in any dispute filed by any potential claimant regardless of whether the plaintiff intended to cover the particular claimant under its workers’ compensation policy.

Finally, the plaintiffs claim that it only signed the application for insurance and, thus, that it is “not contractually obligated to pay an increased premium based merely on the possibility that a health care worker could be determined to be an employee,” is legally and factually incorrect. Although the plaintiff only signed the workers’ compensation application, at no time did the plaintiff contest its coverage or the existence of a contractual relationship with the defendant. In fact, the plaintiffs argument is flawed in that it argues that it is not bound by the policy provisions providing for audits and potential increased premiums while simultaneously arguing that the defendant is bound to cover the plaintiff with the very policy the plaintiff contests. That being said, multiple provisions in the policy provide that the plaintiff is contractually obligated to pay a higher premium if an audit establishes a different risk exposure on the defendant’s part. First, part five, section E, titled, “Final Premium,” states that “[t]he final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy. If the final premium is more than the premium you paid to us, you must pay us the balance.” Beverly Anglin testified at trial, on behalf of the plaintiff, that she received a copy of this policy in response to its application. Accordingly, the plaintiff should have been aware that it could become contractually obligated to pay a higher premium than that originally estimated in the application it signed. Second, part five, section C, titled, “Remuneration,” states in relevant part: “This premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of: [1] All your officers and employees engaged in work covered by this policy; and [2] All other persons engaged in work that could make us hable under Part One (Workers Compensation Insurance) of this policy. . . . This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.” Much like the policies in National Fire Ins. Co. of Hartford and Hartford Accident & Indemnity Co., the policy provisions in the present dispute provide that the defendant may charge a premium—potentially different from the premium originally estimated at the inception of the contractual relationship—based on its risk exposure regardless of whether the HCPs are classified as employees or independent contractors. In addition, the contract itself explicitly provided that the final policy premium would be determined after the policy period ended. Accordingly, we find that the defendant had the contractual right to charge the plaintiff the increased premium based on its final audit of the plaintiffs business operations, which demonstrated a much higher risk exposure on the defendant’s part than originally estimated.

The judgment is reversed with respect to the first count of the plaintiffs complaint and the case is remanded with direction to render judgment for the plaintiff on that count; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We use the acronym HCPs for purposes of clarity and consistency as this terminology was used at trial.

       Federal 1099 tax forms are generally used to report payments made in the course of a business to a person who is not an employee; See Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 729, 12 A.3d 603 (“[o]ther persuasive factors that a person is holding oneself out to be an independent contractor include the issuance of 1099 federal tax forms”), cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011); as distinguished from W-2 tax forms, which are used to report wages, tips, and other compensation paid to an employee.

       Although the plaintiffs flyer does represent that the plaintiff conducts follow-up calls to evaluate the HCP’s performance, Beverly Anglin, the plaintiffs president, testified on behalf of the plaintiff at trial that such calls are not frequently made in practice.

       Employers who are unable to obtain workers’ compensation insurance coverage through the voluntary insurance market must apply for coverage through the assigned risk market. See ED Construction, Inc. v. CNA Ins. Co., 130 Conn. App. 391, 394 n.3, 24 A.3d 1 (2011).

       The council is the Residual Market Plan Administrator for Connecticut. See ED Construction, Inc. v. CNA Ins. Co., 130 Conn. App. 391, 395 n.4, 24 A.3d 1 (2011).

       Beverly Anglin testified at trial that the defendant did not communicate to her that it wanted workers’ compensation—and not professional liability— insurance certificates related to the HCPs. The record, however, belies this claim. The court received evidence that both the “Contractors Questionnaire” and the letter the plaintiff received requesting such information specified that the defendant wanted “workers’ compensation certificates of insurance” for each subcontractor. On the basis of this record, it is apparent that the defendant was requesting proof of workers ’ compensation insurance coverage for each listed individual to establish whether those individuals needed to be included in its calculation of its risk exposure in determining the final premium. Moreover, the policy, as adduced at trial, included part five, section C, titled, “Remuneration,” which states that the calculation of the premium is based on the remuneration paid or payable to “[a]ll other persons engaged in work that could make us liable under Part One ... of this policy . . . This paragraph 2 will not apply if you give us proof that the employers of thesepersons lawfully secured theirworkers compensation obligations.” (Emphasis added.)

       The letter stated in relevant part: “As provided in the policy provisions, the estimated premium basis for your insurance policy(s) is subject to adjustment. Your audit will consist of a review of certain financial records such as, but not limited to, payroll/sales reports and tax forms. These records, and others, will help to determine the proper insurance premium based on the coverage provided.”

       General Statutes § 31-275 (9) provides in relevant part: “(A) ‘Employee’ means any person who: (i) Has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state . . . .”

       The defendant later conducted a final audit in which it determined a final premium amount of $67,069.

       The defendant claimed that the plaintiff only owed $66,000, after conducting further audits and subtracting the amount the plaintiff had already paid to the defendant.

       In its counterclaim, the defendant made several claims concerning the plaintiffs alleged breach of contract. In its first count, the defendant claimed that the HCPs were the plaintiffs employees and that, as such, the plaintiff breached the express terms and conditions of the policy by failing to permit the defendant to inspect its workplace and records to calculate the final premium and by failing to pay the premium due under the policy. Whether the plaintiff actually cooperated with the defendant during the final stages of the final audit was a point of contention at trial. In the second count of its counterclaim, the defendant argued, in the alternative, that if the HCPs were independent contractors, the plaintiffs failure to pay the premium due under the policy still constituted a breach of contract.

       In its memorandum of decision, the court noted that two workers’ compensation claims had been filed against the plaintiff by two different HCPs in the past. One such claim was adjudicated by a workers’ compensation commissioner, who, rejecting the plaintiffs claim, determined that the HCP claimant was an employee and ordered the plaintiff to pay benefits owed to the claimant under the act. The second claim was settled for $15,000. There is nothing in the record to indicate, nor do the parties argue, that we are bound by the commissioner’s findings and the litigants’ agreement in those two instances.

       See also Nationwide Mutual Ins. Co. v. Alien, 83 Conn. App. 526, 536, 850 A.2d 1047 (“ [T]he fact that a worker did not have any significant investment in the materials or tools necessary to perform the job and that the necessary equipment or materials were furnished by the employer are factors that weigh in favor of a determination that the relationship between the plaintiff and [the worker] was that of employer-employee and not that of an independent contractor. . . . Even more important is the court’s finding that [the worker] never performed services for [the employer’s] clients without [the employer] or someone else from [his] business being present.” [Citation omitted.]), cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).

       In its memorandum of decision, the court found that: “The plaintiff does not own, operate or manage any physical premises on which the HCP performs their assigned tasks. The only ‘supervision’ provided by the plaintiff relates to the specific requirements for the assignment which the plaintiff has received from the third party.”

       In signing a contract with the plaintiff, each third-party client acknowledged that: “All temporary nurses are independent contractors who provide their own insurance and are paid directly by [the plaintiff]. At all times hereunder, the nurses/certified nurses assistants] provided to the facility by [the plaintiff] shall be independent contractors of the SUPPLIER only.” (Emphasis in original.) Additionally, each HCP was required to sign an acknowledgment form in conjunction with its.application, which stated: “In signing this form you are declaring that you are an independent contractor and in the event of injury you are not entitled to workers compensation benefits; that is, you work at your own risk. In the event of on the job injury you will not receive coverage for los[t] wages. Should you require such insurance, it is your responsibility to do so. As an independent contractor you will not be eligible for unemployment compensation at the termination of your assignment.” Although the existence of this language declaring the HCP to be independent contractors is important to note when examining the totality of the evidence, we acknowledge that merely labeling the HCP as an independent contractor is not dispositive. See 2 A. Sevarino, supra, § 4.13.2, p. 431 (“[t]he mere labeling of the employment relationship as an independent contractor by the parties may not prevent a Workers’ Compensation Commissioner from finding that the injured worker is in fact an employee based upon the actual work relationship”); see also Latimer v. Administrator, supra, 216 Conn. 251-52 (“Language in a contract that characterizes an individual as an independent contractor [rather than an employee] is not controlling. The primary concern is what is done under the contract and not what it says. . . . Such provisions in a contract are not effective to keep an employer outside the purview of the act when the established facts bring him within it. We look beyond the plain language of the contract to the actual status in which the parties are placed.” [Citations omitted; internal quotation marks omitted.]).

       Kidd testified that remuneration is “essentially the term that insurance carriers—we use within the industry to—to describe exposure for a policy. It includes payroll to employees. It could include payroll to uninsured subcontractors or cash payments to—to contract labor.”

       In its brief, the plaintiff argues that: “[T]his is not a situation where the plaintiff filled out an application to be covered by a policy of workers’ compensation insurance issued by the defendant, in which it agreed to be bound by a provision of this type.” The plaintiff argues, as well, that in the present case it “filled out an application to the assigned risk pool of the [workers’ [compensation [p]lan. The application signed by the plaintiff does not include a provision which gives the defendant the right to increase the premium based on potential liability to the defendant. The plaintiff does not dispute that the application commits the plaintiff to interim audits, and increased premiums if health care professionals are determined to be employees and not independent contractors. However, the plaintiff is not contractually obligated to pay an increased premium based merely on the possibility that ahealth care worker could be determined to be an employee.”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CLORISSA HELLAMNS v. YALE-NEW HAVEN HOSPITAL, INC.
    (AC 34904)
    Robinson, Alvord and Lavery, Js.

      Argued September 26
    officially released December 31, 2013

      Miles N. Esty, for the appellant (defendant).

      William B. Wynne, with whom, on the brief, was Lawrence H. Adler, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant, Yale-New Haven Hospital, Inc., appeals from the judgment rendered after a trial to the court awarding the plaintiff, Clorissa Hellamns, damages for injuries sustained in a fall on the defendant’s property. The defendant claims that the court applied a standard of care contrary to law. The defendant also claims that the plaintiff failed to establish that the defendant had notice of the defect. We reverse the judgment of the court.

The court found the following facts. On September 15, 2009, the plaintiff sought treatment related to her pregnancy at the Dana Clinic Building located at 789 Howard Avenue, New Haven. The Dana Clinic Building is owned by the defendant. While walking in a hallway, the plaintiff slipped on a puddle of water on the floor and fell, A janitor, pushing a cart with cleaning material and a warning sign, walked past the spot where the water had accumulated just prior to the plaintiff falling. The hallway primarily served patients, many of whom were pregnant, and the hallway was not open to the public, in that the patients needed permission to enter from the waiting room. As a result of the fall, the plaintiff received strains and injuries to her lumbar spine, groin area, right knee, the bottom of her stomach, and other contiguous muscles. Her unborn child was not injured.

The plaintiff brought this action against the defendant to recover damages for the injuries sustained as a result of her fall. The matter was tried to the court on April 13, 2012. On July 16, 2012, in a written decision, the court found the defendant negligent. The court awarded the plaintiff $61,914 in damages. This appeal followed.

I

The defendant first claims that the court applied a standard of care contrary to law. Specifically, the defendant claims that the court applied a standard akin to strict liability. The court held that “extra care was required by the defendant with respect to the maintenance of the hallway and that care included not to allow hazardous material to remain on the floors of the hallway for any length of time,” and the court found the defendant hable because it “allow[ed] the puddle of water to remain . . . for any length of time.” We agree with the defendant.

Whether the court applied the correct standard of care is a question of law, and therefore our review is plenary. Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008); Deroy v. Estate of Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012).

The general principles of premises liability guide our analysis. It is undisputed that the plaintiff was a business invitee, and therefore, that the defendant owed the plaintiff a duty to keep the premises in a reasonably safe condition. See Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 521, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992); see also DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116-17, 49 A.3d 951 (2012). “Nevertheless, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it. . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers. . . . Accordingly, business owners do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger.” (Citation omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 116-17.

“The controlling question in deciding whether the defendant had constructive notice of the defective condition is whether the condition had existed for such a length of time that the defendants’ employees should, in the exercise of due care, have, discovered it in time to have remedied it. . . . What constitutes a reasonable length of time within which the defendant should have learned of the defect, how that knowledge should have been acquired, and the time within which, thereafter, the defect should have been remedied are matters to be determined in light of the particular circumstances of each case. The nature of the business and the location of the defective condition would be factors in this determination. To a considerable degree each case must be decided on its own circumstances.” (Citation omitted.) Pollack v. Gampel, 163 Conn. 462, 469-70, 313 A.2d 73 (1972); see also Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163-64, 914 A.2d 529 (2007); Morris v. King Cole Stores, Inc., 132 Conn. 489, 494, 45 A.2d 710 (1946).

The court found that “ [i]n view of the plaintiffs physical condition at the time of the fall (that is, she was six months pregnant), and that the defendant had knowledge that pregnant women used the hallway of the hospital where the fall took place ... to allow the puddle of water to remain which caused the fall for any length of time constituted negligence on the part of the defendant.” On appeal, the defendant asserts that this standard of care is improper because it is akin to strict liability, in that a plaintiff need only prove the presence of a defect to establish liability. Further, the defendant argues that any application of strict liability to this case was improper because Connecticut does not recognize strict liability as the standard of care owed by a premises owner to pregnant business invitees, and because the plaintiff did not plead strict liability.

We agree with the defendant that the standard of care used by the court is contrary to law. A duty on a premises owner to ensure that a defect does not exist for “any length of time” is incompatible with the plaintiffs well established duty in a premises liability action to prove that a defect existed for “a reasonable length of time,” that is, a period of time such that the defendant could have both learned of and remedied the defect. See, e.g., Columbo v. Stop & Shop Supermarket Co., Inc., 67 Conn. App. 62, 63-65, 787 A.2d 5 (2001) (evidence that plaintiff fell on dirty milk insufficient basis for inference to be drawn that milk was on floor for sufficient period of time to establish actual or constructive notice), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002). Further, to establish the presence of a defect for “any length of time,” the plaintiff need only establish a causal link between the defect and the premises owner. Such is the burden borne by a plaintiff in a strict liability action; see Caporale v. C. W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961); and not in a premises liability action. The duty of care imposed by the court in the present case was improper for a premises liability action.

The plaintiff asserts that the court did not apply strict liability, but “rather, it found that given the combination of total control of the hallway, the population it served and a janitor with the means of curing or warning of the defect, the defendant knew or should have known that the defect existed.” We are not persuaded. By holding the defendant liable regardless of whether it was aware of any defects, solely because of the population that the hallway served, the court converted the defendant into an insurer of the safety of the pregnant women who are given access to the hallway. This finding is incompatible with a principle of premises liability that a property owner is not an insurer of the safety of its invitees. Drible v. Village Improvement Co., 123 Conn. 20, 23-24, 192 A. 308 (1937) (“[u]nder familiar principles of law, the defendant, as a property owner, is not an insurer of the safety of persons using . . . the premises against the possibility of injury by reason of [a defective condition] thereon. . . . Mere proof of the presence of some [defective condition] does not necessarily show a breach of [a] defendant’s duty. . . . [T]he burden rests upon the plaintiff ... to offer evidence . . . from which the jury conld reasonably conclude that the defendant had notice of this condition and faded to take reasonable steps to remedy it after such notice”); see also Morris v. King Cole Stores, Inc., supra, 132 Conn. 494 (“[ejvidence which goes no farther than to show the presence of a slippery foreign substance does not warrant any inference of constructive notice to the defendant”).

We also agree with the defendant that any application of strict liability to this case was improper. In Connecticut, a premises owner is not strictly liable for injuries sustained by pregnant business invitees. See Torres v. Department of Correction, 50 Conn. Supp. 72, 78 n.8, 912 A.2d 1132 (2006) (strict liability is available only where legislature has provided for it or where common law has imposed it and legislature has not changed it). The standard of care applied by the court was incorrect.

II

The defendant also claims that the plaintiff failed to establish that the defendant had notice of the defect. We agree.

The court found that “[j]ust prior to the plaintiff falling, a janitor walked by the spot where the water had accumulated that caused the plaintiff to fall. The janitor had a cart with cleaning material and a warning sign. The water could have been dried or the warning sign could have been displayed which would have alerted the plaintiff to the danger that caused her fall.”

“To the extent that the defendant challenges the trial court’s factual findings, we review such claims under our clearly erroneous standard of review. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006).

A plaintiff can demonstrate that a defendant had actual notice of an unsafe condition by, for example, demonstrating that the condition was created by the defendant’s employee; see Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 607, 419 A.2d 339 (1979); or by presenting evidence that an employee, operating within the scope of his authority, observed the dangerous condition and either was charged with maintaining the area or was charged with a duty to report the unsafe condition. See Derby v. Connecticut Light & Power Co., 167 Conn. 136, 141-42, 355 A.2d 244 (1974), cert. denied, 421 U.S. 931, 95 S. Ct. 1659, 44 L. Ed. 2d 88 (1975). To establish constructive notice, “[t]he controlling question ... is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it. . . . What constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of the case.” (Citation omitted; internal quotation marks omitted.) Considine v. Waterbury, supra, 279 Conn. 870; Sauro v. Arena Co., 171 Conn. 168, 171, 368 A.2d 58 (1976).

At trial, the plaintiff provided only her own testimony and her medical records to establish her case. The sole evidence provided at trial as to the issue of notice was the plaintiff’s own testimony that a janitor walked past the puddle of water just before she fell. The only other evidence before the court was the testimony of an employee of the defendant. This employee testified that, upon entering the hallway after the plaintiff fell, the employee observed the puddle of water, but was unable to determine the source of the water, did not see any cups or other Utter on the ground, and was unable to determine how long the water had been there. The employee also testified that she never observed a janitor.

This evidence is insufficient to support the court’s finding that an employee of the defendant noticed the defect and had the opportunity to remedy the defect. First, the plaintiff did not present the janitor, or any other employee of the defendant, to estabhsh for the court that the janitor actually saw the puddle of water before the accident. While circumstantial evidence can estabhsh constructive notice, a plaintiffs assertion that an employee walked past the defect, absent evidence that the employee actually did see the defect, is insufficient. See Gulycz v. Stop & Shop Cos., supra, 29 Conn. App. 522 (evidence insufficient to estabhsh constructive notice when evidence estabhshed that plaintiff saw defect but failed to estabhsh that defendant’s employees saw defect prior to plaintiffs injury). Second, the plaintiffs testimony estabhshed that a janitor passed the puddle of water only seconds before the plaintiff fell. Evidence establishing that the defective condition existed a few seconds before the accident is insufficient to estabhsh that the defendant had constructive notice of that defect. See White v. E & F Construction Co., 151 Conn. 110, 113-14, 193 A.2d 716 (1963) (evidence that estabhshed that defective condition existed for only two minutes prior to accident was insufficient to charge defendant with constructive notice of defect); see also Gulycz v. Stop & Shop Cos., supra, 521-22.

Third, the plaintiff failed to estabhsh that notice could be imputed to the defendant because the plaintiff did not present any evidence to estabhsh that cleaning the specific hallway where the accident occurred was within the janitor’s scope of employment. See Derby v. Connecticut Light & Power Co., supra, 167 Conn. 142 (“[w]hile it is true that matters coming to the knowledge of an agent of a corporation within the scope of his authority are conclusively presumed to have been reported to his principal . . . there is nothing in the evidence of the present case to indicate that the condition of the [property] was a matter within the scope of the authority of the repairman who may have seen it, or any other agent who may have entered onto the property” [citations omitted]). “Inferences to be drawn from the facts proved must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture.” Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959); see also Gulycz v. Stop & Shop Cos., supra, 29 Conn. App. 522. The conclusion of the court that the defendant had notice of the puddle of water by virtue of a passing janitor was without evidential basis and could only have been the result of speculation. Palmieri v. Macero, supra, 708. Such a finding is clearly erroneous.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendant also argues that the standard of care applied by the court was contrary to law because it removed the plaintiffs burden to prove notice. Because we agree with the defendant that the standard of care applied by the court was improper because it was akin to strict liability, it is unnecessary to address any additional aspects of the defendant’s claim.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JOHN VIVO III
    (AC 33859)
    Alvord, Bear and Borden, Js.

      Argued October 29
    officially released December 31, 2013

      John Vivo III, self-represented, the appellant (defendant).

      C. Robert Satti, Jr., supervisory assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The self-represented defendant, John Vivo III, appeals from the judgment of the trial court denying, in part, his motion to correct an illegal sentence and resentencing him to a total effective sentence of seventy-five years imprisonment. He raises numerous claims on appeal challenging the judgment. We affirm the judgment of the trial court.

In 1995, the defendant was found guilty by a jury of murder in violation of General Statutes § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and commission of a class A and class B felony with a firearm in violation of General Statutes § 53-202k. The court, Gormley, J., sentenced him to sixty years imprisonment on the murder conviction, ten years on the assault conviction, and five years on the violation of § 53-202k, all the sentences to run consecutively to each other, for a total effective sentence of seventy-five years imprisonment. The Supreme Court affirmed the judgment of conviction. See State v. Vivo, 241 Conn. 665, 697 A.2d 1130 (1997).

Thereafter, the defendant filed a petition for a writ of habeas corpus alleging ineffectiveness of both his trial and appellate counsel. The habeas court, Hon. Richard M. Rittenband, judge trial referee, denied the habeas petition and granted certification to appeal. This court reversed the habeas judgment as to the defendant’s conviction under § 53-202k, noting that § 53-202k is a sentence enhancement provision, not a separate offense. See Vivo v. Commissioner of Correction, 90 Conn. App. 167, 177, 876 A.2d 1216, cert. denied, 275 Conn. 925, 888 A.2d 1253 (2005). Accordingly, we concluded that “[although the [defendant’s] total effective sentence was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense” and we remanded the case “with direction to vacate that conviction and to resentence the [defendant] to a total effective term of seventy-five years incarceration.” Id.

Thereafter, the self-represented defendant filed this amended motion to correct an illegal sentence raising three claims: (1) the seventy-five year sentence is contrary to the initial remand order of this court; (2) he is entitled to a new trial and a jury determination regarding the applicability of the § 53-202k enhancement provision; and (3) he was never resentenced as required by the remand order of this court. The trial court, Devlin, J., denied the first two claims. As to the third, Judge Devlin noted that, following this court’s remand in the habeas action, the habeas file indicated that the habeas court, Bryant, J., had filed its own “Motion for Judgment” and resentenced the defendant to a total effective sentence of seventy-five years imprisonment without, however, the defendant’s presence and without anything being placed on the record. In addition, the judgment mittimus was never modified to reflect the vacated conviction under § 53-202k. Accordingly, Judge Devlin vacated the conviction under § 53-202k and resentenced the defendant as follows: sixty years imprisonment on the murder conviction, and ten years on the assault conviction enhanced to fifteen years pursuant to § 53-202k, to run consecutively to the sentence on the murder conviction, for a total effective sentence of seventy-five years imprisonment. Judge Devlin also amended the mittimus to reflect the vacated conviction. This appeal followed.

The defendant raises the following claims on appeal: (1) Judge Devlin abused his discretion in denying the defendant appointed counsel to pursue his motion to correct an illegal sentence; (2) Judge Devlin improperly denied the defendant’s motion to correct an illegal sentence; (3) Judge Devlin abused his discretion in determining that the defendant was not entitled to a new trial and jury determination as to the applicability of § 53-202k; (4) his sentence is unconstitutional and, therefore, his incarceration is illegal; (5) his resentenc-ing by Judge Bryant was imposed in an illegal manner; (6) his sentence under § 53-202k constituted double jeopardy; (7) Judge Devlin abused his discretion when he vacated the conviction under § 53-202k “on the mitti-mus and sentence[d] the defendant opening of final judgment on the assault charge and imposed [five] years without due process” of law; and (8) the denial of his request for appellate counsel violated his constitutional rights under the federal and state constitutions, and his rights under General Statutes § 51-296. We disagree.

We have carefully considered all of the defendant’s claims, and have fully reviewed the record in light of those claims. We conclude that all of his claims are without merit.

The judgment is affirmed.

       Notably, when Vivo v. Commissioner of Correction, supra, 90 Conn. App. 167, originally was released, the rescript contained a clerical error directing the court on remand “to resentence the [defendant] to a total effective term of seventy years incarceration.” (Emphasis added.) Thereafter, this clerical error was corrected to reflect this court’s intended order to resentence the defendant “to a total effective term of seventy-five years incarceration.” (Emphasis added.) Id., 177.

       Additionally, the defendant filed an objection to the public defender’s report determining that the defendant was not entitled to counsel to pursue his motion to correct an illegal sentence, pursuant to State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007). The trial court, Devlin, J., overruled this objection.


author: ROBINSON, J.

text:
    DALE J. HOGAN ET AL. v. TERESA B. LAGOSZ
    (AC 35028)
    Robinson, Sheldon and Harper, Js.

      Argued October 10
    officially released December 31, 2013

      Jonathan M. Starble, with whom, on the brief, was Brooke M. Meting, for the appellant (defendant).

      Kevin M. O’Brien, with whom was Neil E. Atlas, for the appellees (plaintiffs).
   Opinion

ROBINSON, J.

The defendant, Teresa B. Lagosz, appeals from the judgment of the trial court rendered on the motion of the plaintiffs, Dale J. Hogan and Maria J. Hogan, to give full force and effect to an out-of-court settlement agreement and to the court’s November 7, 2008 decision enforcing that settlement agreement. The defendant claims that the court (1) lacked the jurisdiction or the authority to render its decision, (2) lacked the authority under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993), and its progeny to grant the relief set forth in the decision, and (3) improperly imposed new settlement terms that are inconsistent with or go beyond the scope of the terms of the parties’ settlement agreement as construed by the court in its November 7, 2008 decision. We disagree and affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of the present appeal. “On May 26, 2005, the sellers by warranty deed conveyed to the plaintiffs two vacant lots located in Berlin. Known as ‘Lot 27 Norton Lane’ and ‘Lot 28A Norton Lane,’ they sat to the rear of 468 Norton Lane (parcel), which, at all relevant times, was owned by the defendant. It is undisputed that the lots are landlocked.

“In dispute was whether the parcel was subject to an easement bridging the lots to Norton Lane. On February 24,2006, the plaintiffs commenced an action against the defendant, alleging that the parcel was subject to a right-of-way described on the Berlin land records as ‘20' Access Easement in favor of Lot 28A.’ They further alleged that, in maintaining a locked gate across the right-of-way, the defendant obstructed their use thereof. In response, the defendant filed an answer and two special defenses, in which she averred that the alleged right-of-way had been lost by abandonment or adverse possession. Because the warranty deed provided that the sellers conveyed ‘all rights of way to the [r]oadway, known as Norton Lane,’ the plaintiffs thereafter cited in the sellers as additional defendants to recover damages for breach of warranty under that deed.

“The parties appeared for trial on the morning of March 5, 2008, at which time a settlement discussion ensued among their attorneys. The parties reached an agreement in principle and thus requested a thirty day continuance to ‘finalize the documentation’ that was to be incorporated into the stipulated judgment, which the court, Hon. Julius J. Kremski, judge trial referee, granted. The parties and their attorneys remained in the courtroom after Judge Kremski departed, and the settlement discussion continued. As that discussion transpired, surveyor John L. Guilmartin, Jr., who had been scheduled to testify at the proceeding, arrived. The parties and their attorneys met with Guilmartin to discuss placement of an easement over the parcel as shown on an existing survey prepared in November, 2007, for the state by Eric Seitz Land Surveying, Inc. (existing survey). They instructed Guilmartin to modify the right-of-way depicted on that survey so as to traverse the southern portion of the parcel and to remain approximately one foot from that property line. As the defendant stood beside him, the defendant’s husband, Joseph Lagosz, drew a line on the survey with his finger as to the location of the new right-of-way.

“While Joseph Lagosz detailed the location of the right-of-way, counsel for the defendant, attorney Jack M. Bassett, drafted a handwritten document titled ‘Essential Terms of Agreement’ (agreement). It provides: T. [The defendant] will agree to granting a [twenty foot] wide [right-of-way] from the gate positioned at [the railroad] tracks/Norton Lane to the [plaintiffs’] premises, Lot 28A, subject to placement by agreement (ingress and egress). 2. The parties will cooperate in defining the placement of the [right-of-way] by the plaintiffs’ surveyor as closely as possible in keeping with the outline sketch placed upon a copy of the [existing survey] in court today. 3. The parties will maintain insurance coverage pertaining to their respective insurable interests on the subject [right-of-way] area. 4. [The sellers] agree to pay the sum of $5000 to [the defendant’s] counsel as trustee within ninety days of the date hereof. 5. The parties will not unreasonably park cars upon or otherwise impede the [right-of-way]. 6. [The] plaintiffs, at their sole expense, will pay for the preparation and filing of the map or plan depicting the newly defined [right-of-way] area. 7. The parties will share reasonable costs in the portion of the [right-of-way] mutually utilized, with the plaintiffs bearing sole responsibility for the maintenance in the travel portion pertaining to their remaining area. 8. The parties agree to keep the gate at Norton Lane in place, locked with a combination lock with the combination to be shared. The parties will only share the combination reasonably in a limited fashion with appropriate business and personal invitees and licensees of the parties. In the event that unintended access abuses are observed, either party can change the combination with required immediate provision of the new number to the other.’ The respective attorneys for the plaintiffs, the defendant and the sellers signed the agreement at that time.

“In the following weeks, counsel for the plaintiffs drafted a stipulated judgment and an easement for the defendant’s review. In addition, Guilmartin prepared a survey, consistent with the instructions provided to him on March 5, 2008, that featured the new right-of-way across the parcel. Those documents were forwarded to Bassett. On April 17, 2008, Bassett scheduled a meeting at his office with Joseph Lagosz to review those materials, at which time Joseph Lagosz informed him of the termination of his services by the defendant. Six days later, attorney Jonathan M. Starble filed an appearance on behalf of the defendant in lieu of Bassett.

“On April 24, 2008, the plaintiffs filed a motion to enforce the agreement. The corut [Gilligan, J.] held an evidentiary hearing on the matter on May 22, 2008. Guilmartin, Bassett and Dale J. Hogan testified in support of the motion, while the defendant testified in opposition. In addition, documentary evidence was submitted and the parties filed posthearing briefs. In its November 7, 2008 memorandum of decision, the court expressly credited the testimony of Bassett and Guilm-artin, stating that ‘[a]t all times, the court found the witnesses . . . Bassett and Guilmartin to be competent and their testimony to be believable and credible.’ The court rejected the defendant’s contention that Bas-sett lacked authority to sign the agreement on her behalf. Finding the language of the agreement clear and unambiguous, the court further found it to be ‘a binding settlement agreement.’ In addition, the court found that ‘the parties manifested their agreement as to the location of the right-of-way and directed the surveyor to depict its location on the survey, which he prepared in accordance with their instructions.’ At the same time, the court noted that ‘[t]o the extent that the survey prepared by Guilmartin or the terms of the ancillary legal documents directly conflict with the terms of the agreement as found by this court, any such terms are not permitted, absent agreement of the parties.’ . . . The court thus retained jurisdiction ‘over this matter until the parties have filed, no later than forty-five days from the date hereof, such stipulations and documentation as the court deems necessary to give full force and effect to the agreement.’ ” (Emphasis in original; footnotes omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 604-608, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d 151 (2011).

The defendant appealed to this court from the trial court’s November 7, 2008 decision, and no stipulations or documentation were filed with the trial court. This court affirmed the trial court’s decision on the motion to enforce, holding, inter alia, that there was sufficient evidence to support the court’s findings that the defendant’s attorney had apparent authority to sign a binding settlement agreement, and that the settlement agreement was clear and unambiguous as to the location of the new right-of-way. Id., 612, 614. Our Supreme Court denied the defendant’s petition for certification to appeal this court’s decision on January 4, 2011.

On May 18, 2012, the plaintiffs filed a motion with the trial court “to give full force and effect to [the] settlement agreement.” The plaintiffs stated in the motion that they had commissioned a survey to place the right-of-way on a map in accordance with the description of the location of the right-of-way as set forth in this court’s opinion. The plaintiffs asked the court, “in keeping with its decision of November 7, 2008, to make the necessary findings to give full force and effect to the decision of this court by approving all necessary documents, including maps, easements and rights of way for recording in the land records of the town of Berlin.” The defendant filed an objection to the motion in which she argued that the court improperly had retained jurisdiction and ordered further proceedings or actions by the parties, that even if the court properly retained jurisdiction, such jurisdiction had ceased by its own terms forty-five days after the N ovem-ber 7, 2008 decision, and that the plaintiffs’ motion must be denied because it failed to specify the relief requested and the basis upon which any proposed relief could be granted.

The court, Sweinton, J., heard argument on the motion on July 9, 2012. On that same date, the plaintiffs filed proposed orders and the survey map depicting the location of the right-of-way. On August 12, 2012, the court issued a memorandum of decision finding that the survey map submitted by the plaintiffs was in compliance with the location of the easement as agreed to by the parties and as described in this court’s opinion and that the proposed orders were in accordance with the terms of the settlement agreement. On the basis of those findings, the court entered the following orders: “1. The plaintiffs shall record the [survey map depicting the location of the right-of-way] with the Berlin Town Clerk. 2. The plaintiffs shall have a perpetual easement over that portion of [the parcel] as described on said map. 3. The plaintiffs and the defendant shall maintain insurance coverage pertaining to their respective insurable interest in the subject right-of-way area. 4. The plaintiffs and the defendant shall not unreasonably park cars upon or otherwise impede the right-of-way. 5. The plaintiffs and the defendant shall share reasonable maintenance costs in the portion of the right-of-way mutually utilized by the parties, with the plaintiffs bearing sole responsibility for the maintenance in the travel portion pertaining to their remaining area. 6. The plaintiffs and the defendant agree to keep the gate, as depicted on the above-referenced map, locked with a combination lock with the combination to be shared. The plaintiffs and the defendant shall only share the combination to the lock reasonably, in a limited fashion, with the appropriate business and personal invitees and licensees of the parties. 7. In the event that unintended access abuses are observed, either party may change the combination to the lock, provided the other is immediately provided with the new combination numbers.” This appeal followed.

⅛—I

The defendant s primary claim on appeal is that the court lacked the jurisdiction or the authority to render its August 12,2012 decision. In particular, the defendant argues that, pursuant to the terms of the court’s November 7,2008 order on the plaintiffs’ motion to enforce the parties’ settlement agreement, the court only retained jurisdiction for an additional forty-five days. The defendant suggests that the court lost any jurisdiction that it retained after the forty-five days had passed, or that because of the ensuing appeal of the November 7, 2008 order, the court lost jurisdiction, at the latest, forty-five days after the Supreme Court denied her petition for certification to appeal this court’s opinion affirming the November 7,2008 order. The defendant also argues that because the plaintiffs’ motion to give full force and effect to the settlement agreement was filed more than four months after the court’s November 7, 2008 order, the court also lacked the authority to render its decision pursuant to General Statutes § 52-212a and Practice Book § 17-4. The plaintiffs respond that the defendant has misinterpreted the November 7, 2008 order, that the court never lost its inherent authority to vindicate its November 7, 2008 decision, and that, because the motion to give full force and effect to the settlement agreement did not seek to open or modify substantively the November 7, 2008 decision, § 52-212a and Practice Book § 17-4 are inapplicable. We agree with the plaintiffs.

We begin by setting forth the standard of review that governs our consideration of the defendant’s claim. “Any determination regarding the scope of a court’s subject matter jurisdiction or its authority to act presents a question of law over which our review is plenary.” Tarro v. Mastriani Realty, LLC, 142 Conn. App. 419, 431, 69 A.3d 956 (2013). Further, to the extent that we are required to construe the meaning of a court’s order or to determine the applicability of a statutory provision, we also apply a plenary standard of review. See Perry v. Perry, 130 Conn. App. 720, 724, 24 A.3d 1269 (2011); Florian v. Lenge, 91 Conn. App. 268, 278, 880 A.2d 985 (2005). “As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Perry v. Perry, supra, 724.

A

The defendant first argues that the court, by the terms of its November 7,2008 order, only retained jurisdiction over this matter for an additional forty-five days. She further contends that, even assuming that the running of those forty-five days was tolled due to her appeal of the November 7, 2008 order, any such tolling would have ended on January 4,2011, when the Supreme Court denied her petition for certification to appeal from this court’s decision affirming the order. She thus suggests that the court lost jurisdiction over this matter, at the latest, on February 25, 2011, and, accordingly, the court lacked jurisdiction to consider the plaintiffs’ motion to give full force and effect, which was not filed until May 18, 2012. We are not persuaded.

We first look to the language that the court used in the November 7, 2008 memorandum of decision on the motion to enforce the parties’ settlement agreement. The court ends the decision by stating that it would “retain jurisdiction over this matter until the parties have filed, no later than forty-five days from the date hereof, such stipulations and documentation as the [c]ourt deems necessary to give full force and effect to the [agreement.” (Emphasis added.) It is plain from the language used by the court that the phrase “no later than forty-five days from the date hereof’ is not, as suggested by the defendant, a qualifier of the length of time the court retained jurisdiction. Rather, it modifies the phrase “until the parties have filed,” thus indicating the court’s intention that the parties file the documents necessary to give effect to the court’s ruling within forty-five days. Accordingly, we reject the suggestion that the court’s jurisdiction was somehow curtailed solely by the terms of the court’s own order.

It is axiomatic that part of a trial court’s inherent powers is the continuing jurisdiction to clarify ambiguous orders and “to make whole any party who has suffered as a result of another party’s failure to comply with a court order.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002). Such continuing jurisdiction is derived from the court’s equitable authority to vindicate judgments. Id. Our Supreme Court has determined that “the trial court’s continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases wherein the noncompliant party is in contempt, family cases, cases involving injunctions, or cases wherein the parties have agreed to continuing jurisdiction.” Id., 246.

In the present case, even if the court had failed to state that it was retaining jurisdiction or had stated that it was retaining jurisdiction only for a specific period of time, as suggested by the defendant, the court nevertheless had continuing jurisdiction to consider the plaintiffs’ motion pursuant to its inherent powers because that motion sought to effectuate the court’s prior order instructing the parties to file whatever documentation was necessary to give full force and effect to the parties’ stipulated agreement concerning the subject easement. The court certainly had the authority to render any additional relief or orders necessary to vindicate the settlement agreement and its prior ruling seeking to enforce that agreement. The defendant’s argument to the contrary lacks merit.

B

The other argument asserted by the defendant is that the court lacked the authority to consider the plaintiffs’ motion pursuant to General Statutes § 52-212a and Practice Book § 17-4, because the motion was filed more than four months after the November 7, 2008 order was rendered. Because we conclude that the plaintiffs’ motion did not seek to open or to substantively modify the court’s November 7, 2008 ruling, but merely sought to effectuate it, we conclude that this argument also lacks merit.

Section 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ” (Emphasis added.) Practice Book § 17-4 (a) contains substantially similar language. Even when a postjudgment motion is not styled as a motion to open the judgment, a court’s action on that motion nevertheless could be violative of § 52-212a if, outside the four month statutory period, the court substantively modifies the judgment. See Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 705-706, 894 A.2d 285 (2006). As explained previously in this opinion, however, additional orders and modifications necessary to vindicate a prior order fall within the court’s continuing jurisdiction and therefore are specifically excepted from the four month rule. See Rocque v. Light Sources, Inc., 275 Conn. 420, 432-33, 881 A. 2d 230 (2005). The defendant nevertheless takes issue with two aspects of the court’s August 12,2012 order: its requirement that the easement map filed by the plaintiffs be recorded and its statement that the plaintiffs have a perpetual easement as described by the map. According to the defendant, because neither aspect was a part of the court’s original enforcement order, they are prohibited substantive modifications. We disagree.

In its November 7, 2008 decision, the court determined that the parties had entered into an unambiguous and binding agreement to settle their dispute regarding access to the plaintiffs’ landlocked parcels by way of an easement over the defendant’s property. The court recognized that a map or survey depicting the location of the easement as agreed upon by the parties was necessary to any meaningful settlement of the parties’ dispute and that other “ancillary legal documents” might also be necessary to give full force and effect to the parties’ agreement. The court’s order did not directly state the type of documents that the parties should file with the court, whether the court anticipated that further orders might be appropriate once documents were filed with the court or what actions the court might take should the parties fail to agree as to the type and contents of such documents or to comply with the court’s order that they be filed within forty-five days. Nevertheless, as explained previously, the court had continuing jurisdiction to clarify any ambiguities and to vindicate both the settlement agreement and the court’s prior decision enforcing that agreement, which in the present case necessarily included the authority to determine that documents filed in accordance with its prior order complied with the settlement agreement and were necessary to give full force and effect to that agreement. More importantly, it was within the court’s power to issue additional orders consistent with and in vindication of the parties’ settlement agreement.

We agree with the defendant that the court’s August 12, 2012 decision included orders not found in the court’s November 7, 2008 decision, particularly those requiring the plaintiffs to record the easement map submitted to the court and stating that the plaintiffs “shall have a perpetual easement” over the defendant’s property. We do not agree, however, that those orders were substantive modifications of the November 7,2008 decision. “[A]n easement implies an interest in land, which ordinarily is created by grant and is permanent . . . .” (Internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 440, 680 A.2d 1360, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). It was never in dispute before the trial court that the parties intended to create anything other than a permanent easement that would run with the land. The first term of the parties’ handwritten agreement, which was the basis for the court’s initial enforcement orders, indicated that the easement was “to run with the land with granting terms.” The court therefore did not expand upon or modify the parties’ settlement agreement or its prior enforcement order by clarifying that the plaintiffs “shall have a peipetuai easement.” Further, it is “the policy of our law that all interests in land shall, as far as practicable, appear on the land records so that they may be easily and accurately traced . . . .” (Internal quotation marks omitted.) Johnson v. Sourignamath, 90 Conn. App. 388, 401, 877 A.2d 891 (2006), citing Hawley v. McCabe, 117 Conn. 558, 564, 169 A. 192 (1933). In the November 7, 2008 memorandum of decision, the court found that one of the terms of the parties’ settlement agreement was that “necessary documents for the land record were to be prepared and recorded on the land records at the plaintiffs’ expense.” (Emphasis added.) It necessarily was implied, therefore, that any map or survey depicting the easement that would later be filed with the court would need to be recorded upon the land records. On the basis of our review of the record as a whole, we conclude that the court’s August 12, 2012 orders, rather than being substantive modifications of any aspect of the court’s prior decision, were logical extensions of the court’s prior ruling. As such, neither § 52-212a nor Practice Book § 17-4 is applicable, and we are not persuaded by the defendant’s arguments to the contrary.

II

The defendant next claims that the court lacked the authority under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 804, and its progeny, to grant the relief set forth in the August 12, 2012 decision. As previously stated, our review of challenges to the authority of the court to act is plenary. Tarro v. Mastriani Realty, LLC, supra, 142 Conn. App. 431.

“A hearing pursuant to Audubon Parking Associates Ltd. Partnership ... is conducted to decide whether the terms of a settlement agreement are sufficiently clear and unambiguous so as to be enforceable as a matter of law.” Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 499 n.5, 4 A.3d 288 (2010). The defendant argues that the court’s “Audubon powers” were limited to ruling on the first motion to enforce the settlement agreement and that the court had no inherent authority to take any further action once it had issued its November 7, 2008 decision. The defendant reasons that once a court has found the terms of a settlement agreement clear and unambiguous and rendered a judgment enforcing the agreement, the court would never have occasion to enforce the agreement a second time unless a party expressly violated a term of the agreement. As we fully articulated in part IA of this opinion, however, a court has continuing authority to render additional orders necessary to give full force and effect to an earlier decision, including a decision to enforce an out-of-court settlement agreement, pursuant to its inherent powers to vindicate judgments. We have determined that the court properly exercised that authority in rendering its August 12, 2012 decision. Further, we can find no language in Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 804 or in the cases cited by the defendant that would interfere with or limit a court’s proper exercise of that continuing authority. Accordingly, we reject the defendant’s claim.

m

Finally, the defendant claims that even if the court had the jurisdiction and authority to render the August 12, 2012 decision, the court improperly imposed new settlement terms that are inconsistent with or go beyond the scope of the terms of the parties’ settlement agreement as found by the court in its November 7, 2008 decision. In support of the claim, the defendant again refers to the court’s orders that the plaintiffs record their easement map and that they have a perpetual easement over the defendant’s property as indicated on the map. We do not agree.

In part IB of this opinion, we rejected the defendant’s characterization of the August 12,2012 orders as having substantively modified or imposed terms in conflict with either the parties’ original settlement agreement or the November 7, 2008 orders. We determined that the court’s orders that the map be recorded on the land records and that the easement be permanent are not in conflict with and, in fact, are consistent with the parties’ settlement agreement. The additional orders rendered on August 12,2012, were necessary to give full force and effect to the parties’ agreement. The record simply does not support the defendant’s contrary assertion that the orders are inconsistent with or go beyond the scope of the terms of the parties’ settlement agreement, and, therefore, her claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs’ amended complaint named Jacqueline Root, Cass Witkow-ski, Eleanor Dyer and Rose Davis as additional defendants. They were cited in after the case commenced. In this opinion, we will refer to Root, Witkowski, Dyer and Davis collectively as the sellers and to Lagosz as the defendant.