author: BISHOP, J.

text:
    DONALD HOLMES v. G.A. MASONRY CORPORATION ET AL.
    (AC 22861)
    Dranginis, Flynn and Bishop, Js.
    Argued February 25
    officially released May 6, 2003

      Yinxia Long, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Maureen D. Regula and William J. McCullough, assistant attorneys general, for the appellee (defendant second injury fund).

      Erik S. Bartlett, with whom, on the brief, was David C. Davis, for the appellee (plaintiff).
   Opinion

BISHOP, J.

This is an appeal by the defendant second injury fund (fund) from the decision of the workers’ compensation review board (board). In its decision, the board affirmed the determination of the workers’ compensation commissioner for the sixth district (commissioner) that the workers’ compensation insurance carrier, the defendant Employers Insurance of Wausau (Wausau), had timely notified the fund of its intent to transfer liability, pursuant to General Statutes (Rev. to 1987) § 31-349, for the plaintiff employee’s compensation. On appeal, the fund claims that the board improperly affirmed the commissioner’s determination that Wausau timely notified the fund of the transfer under § 31-349. We affirm the decision of the board.

The following facts and procedural history are relevant to our discussion of the fund’s appeal. On January 15, 1988, while in the employ of the defendant G.A. Masonry Corporation (Masonry), the plaintiff, Donald Holmes, sustained a compensable back injury. Subsequently, the commissioner determined that at the time of the injury, Holmes had a preexisting permanent impairment consisting of asymptomatic spondylolisthesis and degenerative disc disease, and that the injury had rendered his overall disability materially and substantially greater. At the time of that injury, Wausau was Masonry’s workers’ compensation insurance carrier. As a consequence of his injury, Holmes was found to be temporarily totally disabled from January 16 through February 15, 1988, when he returned to work without medically imposed physical restrictions. Soon thereafter, Holmes left Masonry and in March, 1988, began employment with L.G. DeFelice, Inc. (DeFelice), as a heavy equipment operator. Holmes continued to work until May 13, 1991, when his treating physician determined that he was temporarily totally disabled.

On June 24, 1991, pursuant to General Statutes (Rev. to 1987) § 31-349 (a), Wausau notified the fund of its intention to transfer liability to the fund for Holmes’ compensation. Section § 31-349 (a) requires notice of intent to transfer liability ninety days prior to the expiration of the first 104 weeks of a claimant’s disability from a second injury. In response, the fund claimed that the June 24, 1991 notice was untimely. The fund therefore asserted that it had no responsibility toward Holmes. The commissioner disagreed. Finding that Wausau’s notice was timely, the commissioner determined that Holmes’ need for medical care and his disability were one-third due to the January 15,1988 injury and two-thirds due to subsequent repetitive trauma that had occurred over the subsequent period of approximately three years.

The fund’s claim of untimeliness is premised on its assertion that Holmes’ “disability” dates from January 15, 1988, the date of his injury, and that it was continuous for the several months following his injury, including the time period to the date of Wausau’s notice. The latter contention primarily is based on Holmes’ testimony that he continued to experience low back pain throughout the disputed time periods starting with the date of his injury. On that basis, the fund claims that Wausau’s notice, sent approximately 179 weeks after the January 15, 1988 injury, was untimely. Although the fund has stipulated that this case medically qualifies for transfer under § 31-349, it contends that to be timely under § 31-349, Wausau’s notice had to be filed by October 14, 1989.

In response, Wausau argues that for a substantial period of time after the date of his injury, Holmes was not, in fact, disabled and that the periods in which he was not disabled should not be counted in calculating whether its notice to the fund was timely. Wausau’s contention that Holmes was not continuously disabled after his January, 1988 injury is based on its view that the term “disability” as utilized in § 31-349 imports the notion of physical impairment, and that for substantial periods between his January, 1988 injury and Wausau’s notification to the fund, Holmes was not physically impaired. By excluding those disputed periods of “non-disability,” Wausau claims, its June 24, 1991 notice to the fund was timely. Additional facts will be set forth as necessary.

The dispositive issue in the fund’s claim is whether Wausau’s June 24, 1991 notice to the fund was timely. The resolution of the issue, in turn, requires an understanding of the term “disability” as utilized in § 31-349 and an application of that understanding to the facts properly found by the commissioner. The fund argues that the evidence provided to the commissioner of Holmes’ back pain was sufficient to compel a determination that he was continuously “disabled” from the date of the January, 1988 injury and that the commissioner misapplied controlling decisional law in determining to the contrary. We disagree.

The “terms ‘disabled’ and ‘disability’ are not defined in the workers’ compensation statutes. Recent decisions of our Supreme Court, however, have established the meaning of ‘disability’ for purposes of § 31-349 . . . [as a claimant’s physical impairment].” Karutz v. Feinstein & Herman, P.C., 59 Conn. App. 565, 569, 757 A.2d 680, cert. denied, 254 Conn. 949, 762 A.2d 901 (2000). Furthermore, “[w]e determined in Karutz that a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage. . . . We also noted, as decided by our Supreme Court in Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 705 A.2d 200 (1998), that the rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349 (a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.” (Internal quotation marks omitted.) Gillis v. White Oak Corp., 73 Conn. App. 523, 529-30, 808 A.2d 712 (2002), cert. granted on other grounds, 262 Conn. 936, 815 A.2d 136 (2003). From those cases, we conclude that the statutory term disability connotes medical impairment.

We believe that the determination of whether a claimant is physically impaired is a question of fact, and the commissioner, as the fact finder, is entrusted with that task. See Thompson v. Roach, 52 Conn. App. 819, 824, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999). As the fact finder, the commissioner may “reject or accept evidence and [may] believe or disbelieve any expert testimony.” (Internal quotation marks omitted.) Riggio v. Orkin Exterminating Co., 58 Conn. App. 309, 317, 753 A.2d 423, cert. denied, 254 Conn. 917, 759 A.2d 507 (2000). “Our standard of review of the board’s determination is clear. [T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500-501, 677 A.2d 1356 (1996).

I

As to the fund’s first argument, the board properly concluded that “[i]n his 1999 and 2001 decisions [in this matter], the trier stressed that [Holmes] did not have a medical impairment or restriction during most of the time span relevant to the calculation of the 104 week disability period set forth in § 31-349. . . . The trier found that it was not severe enough to constitute such an impairment, at least not until May, 1990.” On the basis of that finding, the fund was ordered to accept liability for Holmes’ claim, as provided by statute.

It is neither the province of the board nor of this court to overturn a commissioner’s factual finding on review if there is support in the record for that finding, even if the record would support a contrary finding. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003).

II

We similarly are not persuaded by the fund’s argument that the board misinterpreted controlling case law by defining disability in terms of loss of earning capacity. The board’s decision made clear that earning capacity did not serve as a basis for determining whether Holmes was disabled. It explicitly embraced pertinent decisional law that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment.” Karutz v. Feinstein & Herman, P.C., supra, 59 Conn. App. 570. The commissioner found that in accordance with the board’s direction, Holmes’ “ability to perform his usual labor between February 16, 1988, and May 13, 1991, does not provide a basis supporting the conclusion of timely notice, except insofar as it flows from the fact that Holmes was not physically impaired during said period.” Additionally, the commissioner found that “there is no credible evidence which was presented that Holmes was medically restricted between February 16, 1988, and May 13, 1991.” Accordingly, the conclusions drawn by the board from the facts found must stand because they resulted from a correct application of the law to the subordinate facts or from an inference legally or reasonably drawn from them.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The plaintiffs workers’ compensation claim and issues ancillary to it have been the subject of various hearings, including previous appeals to the board. We recite only that part of the record that is germane to the dispositive issue in this appeal.

       General Statutes (Rev. to 1987) § 31-349 (a) provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .”

       A physician’s restriction of a claimant to light duty employment is an example of a medical restriction. See Innocent v. St. Joseph’s Medical Center, supra, 243 Conn. 513.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    MICHAEL VITANZA v. AMIGA MUTUAL INSURANCE COMPANY ET AL.
    (AC 22913)
    Laveiy, C. X, and Bishop and Peters, Js.
    Argued February 24
    officially released May 6, 2003

      Anthony B. Corleto, with whom, on the brief, was DharmanP. Niles, for the appellant (named defendant).

      Wesley M. Malowitz, with whom, on the biief, were Russell J. Berkowitz and Lisa Kessler, for the appellee (plaintiff).

      Philip F. von Kuhn, for the appellee (defendant Hartford Insurance Company of the Midwest).
   Opinion

PETERS, J.

Connecticut law requires all personal automobile insurance policies to include coverage for injuries caused by uninsured or underinsured motorists. General Statutes § 38a-334 et seq. An insurer may, however, limit such coverage, in accordance with applicable regulations, if the policy states any such limitation expressly and unambiguously. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 198, 530 A.2d 171 (1987). This case arises out of reparations payments that an insurer was required to make under the law of New York, the state in which the insured was injured. The insurer claims that these payments reduce its Connecticut uninsured motorists coverage either under the terms of its Connecticut reparations benefits policy or under the provision of a Connecticut regulation permitting reductions for medical expenses. The trial court concluded that neither of these reductions was applicable and that the insured was therefore entitled to the full amount of uninsured motorists coverage stated in the policy. We affirm the judgment of the trial court.

The plaintiff, Michael Vitanza, brought an action to recover uninsured motorists benefits from his primary insurer, the defendant Arnica Mutual Insurance Company (Arnica). He also named as a defendant his secondary insurer, the Hartford Mutual Insurance Company of the Midwest (Hartford), to recover uninsured motorists benefits for losses that exceeded those covered by his Arnica policy. His claim arose out of an accident in White Plains, New York, in which he was seriously injured by an uninsured motorist. Arnica filed a counterclaim for a declaratory judgment to determine whether the plaintiff was entitled to the full amount of $100,000 in uninsured motorists coverage that was stated in the Arnica policy. Arnica alleged that its uninsured motorists coverage, although $100,000 on its face, was reduced by $50,000 in reparations benefits in the form of medical benefits that New York law had required it to pay on behalf of the plaintiff. New York no fault automobile insurance law makes the payment of such benefits mandatory even for injuries received by a nonresident such as the plaintiff. Arnica is authorized to issue automobile insurance policies in New York.

In the absence of any disputed questions of material fact on Arnica’s counterclaim, both Arnica and Hartford filed motions for summary judgment. The plaintiff joined in the motion filed by Hartford. The trial court granted the motion for summary judgment filed by Hartford and the plaintiff.

The court held that the issues raised by the counterclaim were governed by Connecticut law and that, under our law, the plaintiff was entitled to the full amount of $100,000 uninsured motorists coverage that he had purchased from Arnica. The court rejected Arnica’s argument that the medical benefits payments it had made under New York’s no fault reparations law entitled Arnica to a reduction under any of the terms of the policy. It further concluded that “Arnica did not draft its policy of insurance to provide for a reduction of [uninsured motorists] benefits . . . .’’It therefore rendered a declaratory judgment in favor of the plaintiff and Hartford. Arnica has appealed.

Amica’s appeal raises questions of law about the construction of the insurance policies that it issued to the plaintiff. Accordingly, our review is plenary. Israel v. State Farm Mutual Automobile Ins. Co., 259 Conn. 503, 507, 789 A.2d 974 (2002); Garcia v. ITT Hartford Ins. Co., 72 Conn. App. 588, 592, 805 A.2d 779 (2002).

As at trial, Arnica’s principal contention on appeal is that the $50,000 it paid as reparations payments under New York law should reduce the plaintiffs uninsured motorists coverage because these payments trigger a reduction in liability that is stated in its Connecticut reparations benefits policy. Alternatively, Arnica asserts that Connecticut law permits a reduction to reflect payment of medical benefits on behalf of an insured and that the plaintiffs automobile insurance policy should be construed to authorize such a reduction. Finally, Arnica argues that considerations of public policy support its construction of the plaintiffs insurance policy because courts should avoid any reading of a contract that would result in a windfall to one of the contracting parties. We are not persuaded.

I

We start with Arnica’s argument for a reduction of coverage based on the terms of the Connecticut reparations benefits policy that was part of the plaintiffs insurance package. In Arnica’s view, as a matter of contract law, the plaintiffs uninsured motorists coverage is reduced by the $50,000 it paid in New York reparations benefits because of a clause in the Connecticut reparations benefits policy.

The clause states: “Any amount payable for economic loss under Urtinsured/Underinsured Motorist Coverage will be reduced by any basic reparations benefits: A. Paid; or B. Payable; to an insured under this policy.” Elsewhere, “this policy” defines reparations benefits as payments of no more than $5000 for medical expenses, funeral expenses, work loss and survivor’s loss of income arising out of an automobile accident.

The enforceability of this clause to accomplish Arnica’s claim for reduction in the plaintiffs uninsured motorists coverage depends on the answer to three questions. First, does the clause, on its face, satisfy the requirement that reductions from uninsured motorists coverage must be express and unambiguous? Second, is the clause still enforceable after the repeal of Connecticut’s no fault automobile insurance law? Three, does the clause supersede other provisions in the plaintiffs insurance package with respect to uninsured motorists coverage? In our view, all three questions must be answered in the negative.

A

The trial court held that Arnica could not prevail because of patent ambiguities in the language of the provision in the reparations benefits policy on which Arnica relies. We agree.

To enforce the contract provision permitting a reduction for payment of reparations benefits, Arnica must establish that a Connecticut reparations benefit policy with a stated maximum payout of $5000 expressly and unambiguously encompasses the $50,000 in benefits that it paid under New York law. On its face, this argument is a stretch. Arnica has never claimed a $5000 offset. We are perplexed about the basis on which Arnica can substitute a $50,000 offset for an unclaimed $5000 offset. Even if the rule of strict construction did not apply, Arnica’s argument would be implausible. Except for the use of the phrase “reparations benefits” in the policy and in the New York statutes, the policy is simply not a good fit for a reduction in benefits because of New York’s reparations requirements.

In addition, the trial court noted a number of ambiguities in the text of the reparations benefits reduction. The court observed that the policy did not define “economic loss,” “noneconomic loss” or the relationship between them. It did not spell out the relationship between reparations payments and noneconomic losses. We agree with the court that the Arnica Connecticut reparations policy did not provide an express and unambiguous vehicle for recoupment of New York reparations payment.

B

The trial court also discussed the relationship between the terms of the reparations benefits policy and the present state of Connecticut automobile insurance law. It held that our legislature’s repeal of our no fault automobile insurance laws; see generally Public Acts 1993, No. 93-297; made reductions for benefits based on reparations payments unenforceable. Arnica acknowledges that a regulation that once permitted uninsured motorists coverage to be reduced by reparations payments has been repealed.

Arnica suggests, however, that the reparations benefits policy is still valid because our law has substituted uninsured motorists coverage for no fault insurance. We are not persuaded that our law equates these coverages. The negligence of an insured plays no role in no fault insurance coverage, but it does play a role in uninsured motorists coverage.

C

In addition to the reasons advanced by the trial court for finding the reparations benefits clause to be inapplicable, the parties’ briefs raise yet another reason why Arnica’s contractual argument is not persuasive. This reason arises out of the lack of an express structural linkage between the reparations policy and the personal auto policy that provided the plaintiff with uninsured motorists coverage in the first place.

The insurance package that the plaintiff bought from Arnica consisted of a number of insurance policies. Each was listed separately on the declaration sheets, which also identified the insured and the insured automobiles. The package contained a Personal Auto Policy, PP 00 01 06 94, as amended by PP 04 91 03 95, and a Reparations Benefits Coverage — Connecticut policy, PP 05 72 09 94. Each of these policies has its own number and its own pagination.

The personal auto policy is the only policy that described “Uninsured Motorist Coverage.” In other substantive parts, the policy described “Liability Coverage,” “Medical Payments Coverage,” and “Coverage for Damage to Your Auto.” Each part had its own “Insiuing Agreement,” its own definition of who qualified as an “insured” and its own provisions for limitations of coverage. The auto policy also included a number of internal cross references to avoid duplication of coverages. The auto policy did not refer to any other policies that might affect the described coverages.

Similarly, the reparations benefits policy did not refer to any of the provisions in the personal auto policy as the source of the uninsured motorists benefits for which the reparations policy permitted a reduction. In that policy, uninsured motorists coverage was simply left undefined.

As a theoretical matter, it is impossible to reconcile this lack of linkage with the policy that limitations of liability must be express and unambiguous to be enforceable. As a practical matter, the lack of linkage imposes unacceptable burdens on purchasers of automobile insurance.

Although we know that insurance buyers rarely read all the terms of the insurance policies that they purchase, we hold them to have constructive knowledge of the terms of the policy as they reasonably could have been understood. Even an extraordinarily conscientious reader of Arnica’s personal auto policy would not, however, have had reason to expect that the uninsured motorists coverage described in the personal auto policy would be subject to limitations not stated anywhere in that policy.

The personal auto policy gave every external appearance of being an integrated document containing all the relevant terms. As part of the description of uninsured motorists coverage, the text of the auto policy contained a section entitled “Limit of Liability.” It provided: “The limit of liability shall be reduced by all sums:

“1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A [liability insurance]; and
“2. Paid or payable because of the bodily injury under any of the following or similar law:
“ ‘a. Workers’ compensation law’; or
“ ‘b. Disability benefits law.’ ”
Correlatively, the text also stated: “We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law:
“ T. Workers’ compensation law’; or
“ ‘2. Disability benefits law.’ ”

Finally, the text expressly disallowed duplication of payment “for the same elements of loss under this coverage and Part A. or Part B. of this policy.” (Emphasis added.)

In our view, these provisions do not give an insured an unambiguous express warning, or indeed any warning at all, of additional coverage limitations in another insurance policy. We recognize that the plaintiff bought the personal auto policy and the reparations policy together, within one overall automobile insurance policy. There may well be circumstances in which such simultaneity would put an insurance purchaser on notice of everything contained in the entire package. That principle is not applicable, however, if, as in this case, one policy contains extensive provisions describing both coverage and limitations on coverage. At the very least, the insurance package did not provide unambiguously for the linkage between the policies on which Arnica’s argument rests.

We conclude, therefore, that, under the circumstances of this case, Arnica did not contract for the right to engraft the provisions of the reparations benefits policy onto the provisions of the personal auto policy. Indeed, it would be paradoxical to conclude that the plaintiffs purchase of an additional insurance policy diminished the enforceability of his primary insurance coverage.

The trial court properly rejected Arnica’s argument that the reparations benefits policy authorized it to reduce the plaintiffs uninsured motorists coverage by $50,000, the amount of the New York reparations payments. The text on which Arnica relies is far too ambiguous to sustain Arnica’s claim. It follows that, as a matter of contract law, the plaintiff is entitled to $100,000 in uninsured motorists coverage.

II

The second argument presented by Arnica’s appeal rests on the applicability of an insurance regulation that permits uninsured motorists insurance to include a provision deducting the payment of medical benefits from uninsured motorists coverage. Section 38a-334-6 (d) (2) of the Regulations of Connecticut States Agencies provides: “The [uninsured motorists] policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage.” The trial court held the regulation to be inapplicable. We agree.

Connecticut statutes make uninsured motorists coverage mandatory for private passenger automobile insurance; General Statutes § 38a-334 et seq.; and confer broad authority on the insurance commissioner to adopt regulations with respect to the minimum provisions that such policies must contain. General Statutes § 38a-334 (a); Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 643, 587 A.2d 415 (1991); Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 279, 231 A.2d 531 (1967); J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 3.2, pp. 181-82. Insurers may, however, include “broader coverage under a policy of automobile liability insurance than that required by such regulations.” General Statutes § 38a-334 (b); see also Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 673-74, 591 A.2d 101 (1991).

The trial court held that Arnica’s personal auto policy did not provide that “any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured recovered under this coverage.” “If an insurer wishes to reduce its payment obligations as set forth in the regulations [and the statutes], it must provide for the reductions by the appropriate policy language. . . . If it fails to do so, the insurer will not obtain the reduction.” (Citations omitted.) J. Berk & M. Jainchill, supra, § 6.1, p. 353.

Arnica’s auto policy stated: “No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and part A [liability coverage] or part B [medical expenses] of this policy.” (Emphasis added.) Arnica argues that “receive duplicate payments for the same elements of loss” is the functional equivalent of the regulatory phrase “reduce the damages.” The trial court found this argument unpersuasive and so do we.

The auto policy nowhere defines the phrase “same element of loss.” It seems entirely plausible to assume that losses attributable to costs for medical services are not the same as losses attributable to lost wages or to pain and suffering. Indeed, costs for some medical services may not cover the cost of other medical services.

Although the regulation and the auto policy both refer to medical costs, the trial court properly concluded that that is not enough for Arnica to avail itself of the protection offered by the regulation. The court aptly cited Chmielewski, which held that “simply because a given fact pattern falls within both the language of the statutory exclusion and a particular policy exclusion, no matter how phrased, both exclusions will apply without regard to whether the policy exclusion was designed to take advantage of the statutory exclusion or whether the two are substantially congruent.” Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 673-74.

We conclude, therefore, that our statutory law did not authorize Arnica to reduce its uninsured motorists coverage by the amount of the medical payments it made on behalf of the plaintiff under New York law. The regulation on which the plaintiff relies is stated in permissive terms. Arnica’s policy did not include the provision reducing liability that the regulation would have permitted the policy to include.

Ill

Arnica’s third and final argument is that the judgment of the trial court should be set aside because it violates public policy. It maintains that it is unfair to require payment of New York reparations benefits on top of Connecticut contractual benefits because such a payment affords the plaintiff $50,000 more coverage than he paid for. In Arnica’s view, if the judgment is affirmed, the plaintiff obtains a windfall.

It is important to observe that this is not an argument about the possibility of a double recovery. All that the trial court’s judgment means is that, if the plaintiff can prove economic and noneconomic damages of $100,000 without reduction by payments from collateral sources, the plaintiff will be made whole to that extent.

We recognize that our holding means that Arnica may shoulder more of the plaintiffs uninsured motorists losses than it may have contemplated. That result does not violate public policy when it was both foreseeable and avoidable. Because Arnica was authorized to write insurance policies in New York, its loss was foreseeable. Because these payments consisted of the payment of medical expenses, Arnica could have provided for a reduction of insurance coverage for these payments in accordance with the applicable Connecticut regulation. Its loss therefore was avoidable.

The judgment is affirmed.

In this opinion the other judges concurred.

       For the sake of convenience, we will refer to uninsured motorists coverage as encompassing both uninsured and underinsured motorists.

       The plaintiff is the named insured for this insurance policy.

       The named insured for this policy is the plaintiffs mother. The plaintiff has coverage under this policy because he resides in his mother’s home.

       The amount of the plaintiffs losses has not as yet been determined. The plaintiff may well have a claim for economic as well as noneconomic losses that he has incurred.

       For the sake of convenience, we assume that, if Arnica is entitled to any offset for payment of New York reparation benefits, the amount of the offset is $50,000. Arnica has in fact paid $49,892.50 for the benefit of the plaintiff, of which $47,021.50 was paid as direct indemnity to physicians, hospitals and others for medical expenses. It acknowledges that New York law obligates it to pay further reparations benefits of $2979.50 for the plaintiffs medical expenses.

       The relevant New York statutes are N.Y. Insurance Law §§ 5103 and 5107 (McKinney (2000). Section 5103 (a) provides in relevant part: “Every owner’s policy of liability insurance issued on a motor vehicle in satisfaction of the requirements of article six or eight of the vehicle and traffic law shall also provide for . . . 1he payment of first party benefits to . . .
      “(2) The named insured and members of his household, other than occupants of a motorcycle, for loss arising out of the use or operation of (i) an uninsured motor vehicle or motorcycle, within the United States, its territories or possessions, or Canada; and (ii) an insured motor vehicle or motorcycle outside of this state and within the United States, its territories or possessions, or Canada.”
      New York Insurance Law § 5102 (b) (McKinney 2000) defines first party benefits as “payments to reimburse a person for basic economic loss on account of personal ir\jury arising out of the use or operation of a motor vehicle, less:
      “(1) Twenty percent of lost earnings . . .
      “(2) Amounts recovered or recoverable on account of such ipjury under state or federal laws providing social security disability benefits, or workers’ compensation benefits, or disability benefits under article nine of the workers’ compensation law, or medicare benefits, other than lifetime reserve days and provided further that the medicare benefits utilized herein do not result in a reduction of such person’s medicare benefits for a subsequent illness or injury.
      “(3) Amounts deductible under the applicable insurance policy.”

       New York Insurance Law § 5107 (a) (McKinney 2000) provides: “Every insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of article six or eight of the vehicle and traffic law and to provide for the payment of first party benefits pursuant to subsection (a) of section five thousand one hundred three of this article when a motor vehicle covered by such policy is used or operated in this state.
      “(b) Every policy described in subsection (a) hereof shall be construed as having the coverage required by subsection (a) of section five thousand one hundred three of this article.”

       Because the plaintiffs injuries may well give rise to losses exceeding $100,000, this case is likely to be a coverage dispute between the two insurers. The record does not indicate whether the insurers attempted to resolve their dispute by recourse to alternate methods of dispute resolution.

       The parties have not challenged the validity of the court’s choice of law decision.

       Practice Book § 61-2 provides in relevant part: “When judgment has been rendered on an entire complaint, counterclaim or cross complaint. . . such judgment shall constitute a final judgment.”

       To facilitate our analysis, we have reordered the sequence of the arguments advanced by Arnica.

       Except for its invocation of this provision, Arnica has not claimed that the plaintiffs damages are limited by the $5000 ceiling contained in the reparations benefits policy.

       The plaintiff also bought coverage for towing and labor costs, safe driver insurance and safely glass.

       See footnote 7.


author: PER CURIAM.

text:
    DARLENE D. NOLAN v. MICHAEL J. NOLAN
    (AC 23277)
    Foti, Flynn and Dupont, Js.
    Argued March 20
    officially released May 6, 2003

      Darlene D. Nolan, pro se, the appellant (plaintiff).

      Patricia A. Carpenter, for the appellee (defendant).
   Opinion

PER CURIAM.

By motion dated April 12, 2002, the plaintiff, Darlene D. Nolan, sought to open the judgment of dissolution of her marriage, dated November 22, 1995, on the ground of fraud. The plaintiff, the ex-wife, claimed that the written agreement signed by the parties and incorporated into the judgment, was procured by “the gross fraud and deception practiced by the defendant,” Michael J. Nolan, her ex-husband. The motion was denied, and the plaintiff now appeals from that judgment. We conclude that the trial court was correct and affirm the judgment.

The plaintiff claims that she proved that the defendant had materially and fraudulently misrepresented his financial condition at the time of the dissolution of marriage, that the plaintiffs counsel “at the time of negotiations of the separation agreement and at the hearing for the dissolution of marriage had a conflict of interest” and that the judge “was clearly partial to the defendant.” After a careful reading of the transcripts of the dissolution of marriage hearing, the preliminary hearing on the plaintiff’s motion, the evidentiary hearing on the motion, during which both parties testified, the agreement that was incorporated into the dissolution judgment, the financial affidavits of the parties submitted at the time of the dissolution, and the exhibits of both the defendant and the plaintiff, we conclude that the plaintiff cannot prevail on any of her claims.

The court conducted a postjudgment probable cause hearing to determine whether any discovery, beyond the testimony of the parties, should be allowed in the future to substantiate the plaintiffs allegations of fraud. As a matter preliminary to such discovery, a plaintiff has the burden to substantiate allegations of fraud that are sufficient to open the judgment. Oneglia v. Oneglia, 14 Conn. App. 267, 269, 540 A.2d 713 (1988). The conclusion of the court that there was “no evidence of any fraud or duress or anything that would allow” the opening of the judgment is documented by the entire record.

The separation agreement gave the plaintiff 15 percent of the net value of 72,000 vested stock options, as listed. The plaintiff, subsequent to the date of dissolution, received as her share, between $219,000 and $270,000, after the deduction of certain agreed to credits to the defendant. The plaintiff testified that she believed the defendant had realized $5 million or $6 million from the sale of stock options through 1997. The defendant testified, however, that he had sold approximately 72,000 shares in a company in which he was the chief financial officer, receiving $2.7 million to November, 1997, as a gross profit before taxes and brokerage commissions, and that the determination of when stock options may be sold is a decision of the compensation committee of the board of directors, of which he is not a member. According to the defendant, the exact value of the options was not known, and could not have been known, at the time he signed his financial affidavit. The plaintiff produced no evidence to show otherwise.

The plaintiff did not prove that her attorney prior to or at the dissolution hearing, in reality, represented the defendant instead of the plaintiff. The plaintiffs attorney, under oath, testified that the plaintiff had hired her, that she had advised the plaintiff that she could not represent both the plaintiff and the defendant, that the plaintiff paid her a retainer, that she did not previously know the defendant, that she had met the defendant once before the dissolution hearing when the plaintiff and the defendant met with her, and that she did not represent the defendant at any time.

The review of the court’s decision not to open the judgment is limited to whether the court exercised its discretion properly. Pospisil v. Pospisil, 59 Conn. App. 446, 449, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). We conclude that the court did not abuse its discretion in refusing to open the dissolution judgment on the ground of fraud. See Mattson v. Mattson, 74 Conn. App. 242, 247, 811 A.2d 256 (2002).

The judgment is affirmed.

       On the date of the dissolution, the parties had been married about five years, and there were no children of the marriage.

       There is absolutely no evidence to substantiate the plaintiffs claim that the judge showed any partiality toward the defendant.

       There were dollar amounts listed on the defendant’s affidavit next to each block of the shares totaling 72,000 in number. If added, the amount exceeded $1 million.


author: DRANGINIS, J.

text:
    VINCENT P. LAROBINA v. HOME DEPOT, USA, INC.
    (AC 21729)
    Foti, Dranginis and West, Js.

      Argued December 6, 2002
    officially released May 13, 2003

      Vincent P. Larobina, pro se, the appellant (plaintiff).

      Charles D. Ray, with whom, on the brief was Ingrid L. Moll, for the appellee (defendant).
   Opinion

DRANGINIS, J.

This appeal arises from an action brought by the plaintiff, Vincent P. Larobina, against the defendant, Home Depot, USA, Inc., alleging breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff appeals from the judgment of the trial court accepting, in part, and rejecting, in part, the report of an attorney trial referee (referee). Specifically, the plaintiff claims that the court improperly (1) rejected the referee’s recommendation that the plaintiff be awarded $1000 in punitive damages and (2) accepted the referee’s recommendation that the plaintiff was not entitled to equitable relief in the form of an injunction or referral to the commissioner of the department of consumer protection. We affirm, in part, and reverse, in part, the judgment of the trial court.

The underlying facts and procedural history are as follows. On January 25, 1999, the plaintiff, who was interested in purchasing carpeting, visited the defendant’s store in Norwalk. During his visit, the plaintiff selected a particular type of carpeting. An employee of the defendant’s store gave the plaintiff, what the plaintiff believed to be, a written quote for the cost of purchasing and installing the carpeting that he had selected. The preprinted form containing the quote indicated that the “total charges of all merchandise & services” was $7.37. Thereafter, the plaintiff was directed to proceed to a cash register, where he presented the register employee with the written quote and a $100 deposit, which was to be credited toward the plaintiffs purchase of the carpeting. At that time, the plaintiff was given a second document entitled, “special services customer agreement.” Subsequently, an agent of the defendant came and measured the premises where the plaintiff intended to have the carpeting installed, and determined that the plaintiff needed 47.34 square yards of carpeting.

On February 5, 1999, the plaintiff returned to the defendant’s store to pay the balance of his order. At that time, he was given a revised quote, which reflected that the balance due was $474.53. The plaintiff maintained that the balance due should have been $248.90, which he arrived at by multiplying the quoted price of $7.37 by 47.34 square yards, and then subtracting the $100 that he already had paid. When the plaintiff expressed his dissatisfaction with the revised quote to an employee of the defendant, the employee offered to cancel the plaintiffs order and to return his $100 deposit. The plaintiff declined that offer.

Thereafter, the plaintiff filed this action against the defendant in which he alleged claims for breach of contract and violation of CUTPA. In accordance with General Statutes § 52-434 (a) and Practice Book § 19-2A, the case was referred to the referee for trial. After considering all of the evidence adduced at trial, the referee issued a report setting forth his factual findings and legal conclusions. With respect to the breach of contract claim, the referee found that the plaintiff and the defendant had, in fact, entered into a binding contract in which the defendant agreed to sell the carpeting to the plaintiff for $7.37 per square yard, including installation, and that the defendant had breached that contract by later attempting to obtain a higher price from the plaintiff for the carpeting. With respect to the CUTPA claim, the referee found that the defendant’s sales practices were misleading and unfair to consumers. The referee further found that the defendant recklessly used a convoluted and misleading structure of documents to reflect a relatively simple transaction.

On the basis of those findings, the referee concluded that the plaintiff was entitled to the return of his $100 deposit as compensatory damages. The referee further concluded that although $225.63, the difference between the original contract price of $348.90 and the subsequent charge of $574.53, was a reasonable measure of compensatory or actual damages, he would not allow the plaintiff that amount as damages because the defendant’s subsequent offers to settle the case by performing the original contract entirely mitigated those damages. Consequently, the referee concluded that the plaintiff was limited to the return of his $100 deposit as actual damages. The referee also concluded that because the defendant’s conduct was reckless, the plaintiff was entitled to punitive damages of $1000 pursuant to CUTPA. Finally, the referee concluded that it was unnecessary to award the plaintiff the equitable relief he sought as a remedy for the CUTPA violation in light of the award of punitive damages, which the referee determined to be sufficient to discourage the defendant from engaging in unfair practices in the future. Consequently, the referee recommended that judgment enter in favor of the plaintiff as to both the breach of contract and CUTPA claims, and that the plaintiff be awarded $100 in actual damages and $1000 in punitive damages for a total damages award of $1100.

Thereafter, pursuant to Practice Book § 19-14, the plaintiff and the defendant filed objections to the referee’s report. Thereafter, the court rendered judgment accepting the referee’s findings and recommendations with two exceptions. First, the court rejected the referee’s recommendation that the plaintiff was limited to $100 in actual damages. The court, therefore, awarded the plaintiff the difference between the original contract price and the subsequent charge, $225.63, in addition to the refund of his $100 deposit, for a total actual damages award of $325.63 on the breach of contract claim. Second, the court rejected the referee’s recommendation that the plaintiff was entitled to $1000 in punitive damages. The court concluded that the plaintiff was not entitled to any CUTPA damages because he failed to prove that he suffered an ascertainable loss as a result of the CUTPA violation. Such proof is required by General Statutes § 42-110g (a).

The plaintiff thereafter filed a motion for articulation, requesting the court to articulate more specifically its judgment as to the CUTPA claim. Thereafter, the court issued a supplemental memorandum of decision in which it stated that although it accepted the referee’s finding that the defendant had violated CUTPA, it did not accept the recommendation that punitive damages be awarded to the plaintiff for the reasons set forth in pages twelve through fourteen of its memorandum of decision.

I

The plaintiff first claims that the court improperly rejected the referee’s recommendation that the plaintiff be awarded $1000 in punitive damages on the basis of the court’s conclusion that although the defendant violated CUTPA, the plaintiff was not entitled to punitive damages as a matter of law because he failed to prove that he suffered an ascertainable loss of money as a result of the CUTPA violation. We agree.

Because the court’s conclusion that the plaintiff was not entitled to CUTPA damages because he failed to meet the statutory prerequisites concerns a question of law, our review is plenary. See Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 348, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110g (a) provides in relevant part: “Any person who suffers any ascertainable loss of money or property ... as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.” (Emphasis added.)

“The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981). Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an “ascertainable loss” due to a CUTPA violation. Id. “[T]he words ‘any ascertainable loss’ [however] ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.” (Emphasis added; internal quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., supra, 72 Conn. App. 354-55.

“ ‘[L]oss’ has a broader meaning than the term ‘damage.’ ” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). For purposes of CUTPA, “[a]n ascertainable loss is a deprivation, detriment, [or] injury that is capable of being discovered, observed or established.” (Internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638, 698 A.2d 258 (1997). “On its face, the loss of a contract is an ascertainable loss.” Johnson Electric Co. v. Salce Contracting Associates, Inc., supra, 72 Conn. App. 355.

With those principles in mind, we turn to the validity of the court’s conclusion that the plaintiff was not entitled to CUTPA damages because he failed to prove that he suffered an ascertainable loss as a result of a CUTPA violation. In its memorandum of decision, the court set forth the following reasoning for its conclusion: “In PAR Painting, Inc. v. Greenhome & O’Mara, Inc., 61 Conn. App. 317, 318, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001), the court set aside a jury verdict finding a violation of CUTPA because there was insufficient evidence to sustain such a verdict. In the present case, there is insufficient evidence that the plaintiff suffered an ‘ascertainable loss of money’ as a result of a CUTPA violation. The plaintiff is being awarded compensatory damages as a result of the breach of contract based on the difference between the two quotes, so he is, in effect, reaping the benefit of his bargain. But the plaintiff rejected the return of his deposit and did not actually purchase any merchandise or property from the defendant which was ‘different from that for which he bargained.’ Hinchliffe v. American Motors Corp., supra, 184 Conn. 615. The plaintiff decided that instead of getting his deposit back and walking away from the misunderstanding, he would initiate CUTPA litigation. Thus, the referee’s recommendation that CUTPA damages be awarded is not accepted.” We disagree with that reasoning for a number of reasons.

First, we conclude that the court’s reliance on PAR Painting, Inc. v. Greenhorne & O’Mara, Inc., supra, 61 Conn. App. 317, for the proposition that the plaintiff has failed to establish a causal relationship between his loss and the defendant’s misconduct is misplaced. In PAR Painting, Inc., the plaintiff alleged the same wrongful conduct as the basis for both its tortious interference and CUTPA claims. Id., 328. This court concluded that the trial court properly set aside the jury’s verdict and award of damages with respect to both claims because the evidence was insufficient to support the jury’s finding that the defendants had engaged in any wrongful conduct, and because the plaintiff failed to prove a causal relationship between its losses and the defendants’ actions. Id., 326-28.

Unlike the plaintiff in PAR Painting, Inc., the plaintiff in the present case has established that the defendant did something improper. The referee found that the defendant had violated CUTPA by engaging in sales practices that were misleading and unfair to consumers. The court accepted that finding.

Furthermore, we conclude that unlike the plaintiff in PAR Painting, Inc., the plaintiff in the present case also has established that it was the defendant’s improper conduct that caused him to suffer loss. The plaintiff alleged the same conduct as the basis for both its breach of contract and CUTPA claims, namely, that the defendant had agreed, through the use of its standardized form documents, to sell and install carpeting for $7.37 per square yard, and that the defendant later attempted to exact a higher price from the plaintiff for that carpeting. As a result of the defendant’s conduct, the plaintiff lost his bargain to have the carpet installed for a price of $7.37 per square yard. The referee found that this conduct constituted both a breach of contract and a violation of CUTPA.

The court accepted the referee’s finding that the defendant’s conduct gave rise to both a CUTPA violation and a breach of contract. Although the court concluded that the plaintiff was not entitled to CUTPA damages because he failed to prove that he suffered an ascertainable loss, the court did conclude that the plaintiff was entitled to recover damages to compensate him for the loss he suffered as a result of the defendant’s breach of contract. The court even increased the amount of damages the referee had awarded to the plaintiff to compensate him for that loss. We fail to see how the court could have concluded logically that the defendant’s conduct was such that it caused the plaintiff to suffer the loss of his contract, thereby entitling him to contract damages, yet the same conduct, while sufficient to establish a CUTPA violation, failed to constitute an “ascertainable loss” for purposes of CUTPA. As we have stated, “[o]n its face, the loss of a contract [due to an unfair trade practice] is an ascertainable loss” for purposes of CUTPA. Johnson Electric Co. v. Salce Contracting Associates, Inc., supra, 72 Conn. App. 355.

Moreover, we disagree with the court’s implication that if there was a CUTPA loss, it was caused not by the conduct of the defendant, but rather by the conduct of the plaintiff, himself, because he simply could have taken back his $100 deposit and walked away from the transaction rather than initiate a CUTPA claim. Encouraging a claimant to walk away after a business has subjected him to an unfair or deceptive act is not the aim of CUTPA. On the contrary, CUTPA is “aimed at eliminating or discouraging unfair methods of competition and unfair or deceptive acts or practices.” (Internal quotation marks omitted.) Hinchliffe v. American Motors Corp., supra, 184 Conn. 616-17. To achieve that result, “CUTPA seeks to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts.” Id., 618. Encouraging claimants to walk away from unfair or deceptive practices does not serve to help enforce the ban on unfair trade practices and prevents CUTPA from “achieving the remedial effect which the legislature desired.” Id., 616.

Second, we disagree with the court’s unsupported conclusion that because the plaintiff was awarded compensatory damages for the defendant’s breach of contract, the plaintiff had, in effect, reaped the benefit of his bargain and, therefore, could not have suffered an ascertainable loss of money as a result of the CUTPA violation. We find nothing in CUTPA, or case law, to support the court’s conclusion that when a claimant recovers damages for his breach of contract claim, that compensation serves to eradicate any “ascertainable loss” that may have formed the basis for his recovery under CUTPA and restores him to the position he was in before the defendant engaged in such acts of misconduct.

Finally, we note that the court’s reliance on Hinchliffe v. American Motors Corp., supra, 184 Conn. 607, for the proposition that the plaintiff did not suffer an ascertainable loss because he did not purchase any merchandise or property from the defendant that was “different from that for which he bargained”; id., 615; was misplaced. In Hinchliffe, our Supreme Court did not require that a claimant make apurchase to establish an ascertainable loss; it defined “ascertainable loss” in much broader terms. Hinchliffe provided that “[whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property.” Id., 614. Here, the plaintiff did receive something other than that for which he had bargained; he bargained to have carpeting installed at a price of $7.37 per square yard, but he got nothing.

Accordingly, we conclude that the court improperly concluded that the plaintiff was not entitled to punitive damages under CUTPA because he failed to establish that he suffered an ascertainable loss as the result of the defendant’s CUTPA violation.

Because we conclude that the plaintiff satisfied the statutory criteria for relief under § 42-1 lOg (a), the plaintiff was entitled to seek punitive damages. “In order [for the court] to award punitive . . . damages [under CUTPA], [the] evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Internal quotation marks omitted.) Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). “Awarding punitive damages . . . under CUTPA is discretionary . ” (Citation omitted.) Id. “[T]he trial court is not precluded from exercising this discretion even if it finds that the plaintiff has not suffered ascertainable damages.” Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 131, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). Thus, a court may award punitive damages under § 42-1 lOg (a) for a violation of CUTPA even when the plaintiff has failed to show any actual damages flowing from that violation. Id., 130-31; Tillquist v. Ford Motor Credit Co., 714 F. Sup. 607, 617 (D. Conn. 1989).

Here, the referee found that the defendant’s conduct evinced a reckless indifference to the rights of the plaintiff by its use of a confusing and misleading combination of documents to reflect a relatively simple transaction. On the basis of that finding, the referee concluded that the plaintiff was entitled to punitive damages. The court did not conclude that the referee’s finding that the defendant’s conduct was reckless was clearly erroneous. It was, therefore, entirely within the court’s discretion to award punitive damages to the plaintiff on the basis of the referee’s finding.

II

The plaintiff next claims that the court improperly accepted the referee’s finding that the plaintiff was not entitled to equitable relief. Specifically, the plaintiff claims that the court improperly accepted the referee’s finding that he was not entitled to an injunction ordering the defendant to refrain from using the form documents at issue in this case or a referral to the commissioner of the department of consumer protection. We disagree.

Under CUTPA, the decision as to whether to award injunctive or other equitable relief, as with the decision to award punitive damages or attorney’s fees, is entirely within the discretion of the trial court. See General Statutes § 42-110g (a) and (d). “[T]he exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Staehle v. Michael’s Garage, Inc., 35 Conn. App. 455, 460, 646 A.2d

On the basis of our review, we cannot conclude that the court abused its discretion in accepting the referee’s recommendation that equitable relief was not warranted under the facts of this case.

The judgment is reversed only as to the denial of punitive damages and the case is remanded for further proceedings on the plaintiffs claim for punitive damages. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also brought a claim for unjust enrichment. Because neither of the issues that the plaintiff has raised on appeal relate to that claim, we limit our discussion to the plaintiffs breach of contract and CUTPA claims.

       In its brief, the defendant maintains that we should affirm the judgment on the alternate ground that there was no violation of CUTPA and, therefore, no support for an award of punitive damages or equitable relief. We disagree. “It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when apractice is unfair: (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 337, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). On the basis of the referee’s report and the documentary evidence attached to the plaintiffs objection to the report, we conclude that the court properly could have accepted the referee’s finding that the defendant’s conduct relative to the plaintiff constituted a deceptive trade practice in violation of CUTPA.

       Apparently, the original quote of $7.37 represented the per unit cost of the carpet and carpet pad, but did not include the per unit cost of installation. The revised quote of $474.53 included the installation cost.

       The defendant claimed that at some point after the plaintiff instituted his action, it offered to install the carpet for the price of $7.37 per square yard and that the plaintiff declined that offer. The plaintiff denied that the defendant made any such offer.

       The referee arrived at $1000 by multiplying the amount of actual damages, $100, by ten.

       In its objection to acceptance of the referee’s report, the defendant claimed that (1) the combination of forms at issue did not constitute a binding contract, (2) the referee miscalculated the actual damages, (3) its conduct did not violate CUTPA and (4) the referee’s award of punitive damages was not supported by the facts or the law. In his objection to acceptance of the report, the plaintiff claimed that (1) the record did not support a finding that any settlement offer was made by the defendant to the plaintiff and, therefore, the referee’s conclusion that the plaintiff was not entitled to damages exceeding $100 because of his failure to mitigate damages was erroneous and (2) the referee improperly declined to recommend that the plaintiff was entitled to injunctive relief.

       We note that the parties did not provide the court with a complete transcript of the trial that was conducted before the referee, but only portions of that transcript. We agree, however, with the court’s conclusions that it did not need a transcript because the parties were not arguing the facts but, instead, the legal conclusions contained in the recommendations of the referee and because the trial court had before it the same documentary evidence on which the referee relied. See Meadows v. Higgins, 249 Conn. 155, 170 n.10, 733 A.2d 172 (1999).

       “One commentator has suggested that the only function served by a threshold ’loss’ requirement in a consumer protection statute is to guard against vicarious suits by self-constituted attorneys general when they spot an apparently deceptive advertisement in the newspaper, on television or in a store window.” (Internal quotation marks omitted.) Hinchliffe v. American Motors Corp., supra, 184 Conn. 615 n.6.


author: LAVERY, C. J.

text:
    JOHN H. KOLB AND SONS, INC. v. G AND L EXCAVATING, INC.
    (AC 22316)
    Lavery, C. J., and Schaller and Dupont, Js.

      Argued February 20
    officially released May 13, 2003

      William J. Ward, for the appellant (defendant).

      Eugene A. Skowronski, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, G and L Excavating, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, John H. Kolb and Sons, Inc. On appeal, the defendant claims that the court improperly (1) denied its motion for a judgment of dismissal at the conclusion of the plaintiffs case, (2) determined that the six year statute of limitations set forth in General Statutes § 52-576 was applicable as opposed to the three year statute of limitations set forth in General Statutes § 52-581, (3) found that the statute of limitations was tolled, and (4) found that the plaintiff did not act with inexcusable delay in bringing the action and that the defendant was not prejudiced by that delay. We affirm the judgment of the trial court.

The court found the following facts. The parties had a long-standing business relationship based on an oral contract. The plaintiff obtained various types of insurance on behalf of the defendant and paid the premiums. The payments, made by the plaintiff, were recorded in the defendant’s account with the plaintiff. The defendant made periodic payments on the account. The court concluded that this arrangement was an open, running account.

The parties operated under that arrangement from 1986 until February, 1991. In February, 1991, despite the periodic payments made by the defendant, the balance of the account exceeded $62,000 (first account). In April, 1991, the plaintiff started a new account, with a zero balance, on behalf of the defendant (second account). After the second account was started, there were no charges made to the first account, although a balance remained. The defendant made regular payments on the second account, and the last entry on that account revealed a payment resulting in a zero balance.

The court found that the parties had entered into an agreement that all payments made after February, 1991, would first be applied to the balance of the second account and any excess payment would be then applied to the first account. A letter from the plaintiffs bookkeeper, dated September 26, 1991, informed the defendant that a recent payment of $20,000 resulted in the second account having a zero balance. The letter further stated that the overpayment of $8367 would be applied to the balance of the first account.

On March 26, 1993, the defendant made a payment of $4000. That payment resulted in the second account’s balance being reduced to zero, and the overpayment of $825 was applied to the first account balance. The relationship between the parties ended at that point, and the plaintiff no longer obtained insurance on behalf of the defendant. The only remaining issue between the parties was the payment of the first account, which still carried a balance.

In February, 1994, an insurance company issued a dividend check to the defendant in the amount of $800. The check was sent to the plaintiff, who forwarded it to the defendant and requested that the defendant endorse the check over to the plaintiff. The defendant complied with the plaintiff’s request, and the $800 was applied to the first account. The insurance company subsequently placed a stop payment on the check; nevertheless, the court found that this transaction demonstrated the intent of the defendant to acknowledge the debt.

The plaintiff initiated an action to recover the balance of the first account on February 9, 1999. The defendant filed an answer and several special defenses. The first special defense alleged that the action was commenced more than three years after the oral contract allegedly was breached and, therefore, was barred by § 52-581. The second special defense averred that enforcement of the contract was prevented by the six year statute of limitations as set forth by § 52-576. In its sixth special defense, the defendant claimed that the plaintiff had initiated the action after “an inexcusable delay and [that] the defendant has been prejudiced by this delay.”

Following the trial, the court requested and received briefs from the parties regarding the issue of the applicable statute of limitations. The court held that the contract between the parties was executed because the plaintiff had completed all of its contractual obligations; therefore, § 52-576 and its six year statute of limitations applied.

The next issue the court addressed was whether the defendant had tolled the statute of limitations by acknowledging the debt. The court found that although the defendant never expressly directed payment to a particular account, the overpayments of the second account were intended to be applied to the first account As a result, the court stated that the six year statute of limitations was tolled by the overpayments that acknowledged the debt and that the six year statute started to run on March 26,1993, the date of the overpayment of $825 that was applied to the first account. The plaintiff served the defendant with process on February 4, 1999, and, therefore, the court concluded that the action was timely. In a footnote to its written memorandum of decision, the court rejected the defendant’s special defense of inexcusable delay. The court rendered judgment in favor of the plaintiff, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied its motion for a judgment of dismissal at the conclusion of the plaintiffs case. Specifically, the defendant argues that the court found, at the conclusion of the plaintiffs case, that the plaintiffs claim had been initiated outside of both the three year and six year statutes of limitation, and, therefore, denial of the motion was improper. We disagree.

As an initial matter, we set forth the applicable legal principles and standard of review. Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

Our Supreme Court has stated that “[a] prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.” (Citation omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). Moreover, “[w]hether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” Cadle Co. v. Errato, 71 Conn. App. 447, 456, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Fontaine v. Colt’s Mfg. Co., 74 Conn. App. 730, 732, 814 A.2d 433 (2003).

The defendant claims that at the time of its oral motion for dismissal, it argued that the plaintiffs action was untimely under both the three year and six year statutes oflimitation, and that the court replied, “That’s true.” According to the defendant, it was, therefore, improper for the court to proceed any further and the motion should have been granted.

The defendant’s argument fails to account for the statement that the court made immediately after the plaintiff requested a judgment of dismissal: “I’m not going to grant a directed verdict because I’m going to require briefs on this issue of the statute of limitations, and I want the law briefed as to those issues that might or might not toll the statute . . . .” The court had heard evidence, through the testimony of John Kolb, Jr., the president of the plaintiff, that a balance remained on the first account and that the parties had agreed, via the oral contract, that the plaintiff would apply any overpayments on the second account to the first account. From the evidence, the court could conclude that the payments on the account had tolled the six year statute of limitations, and therefore, the court properly denied the defendant’s motion for dismissal.

Furthermore, the basis of the defendant’s motion to dismiss was its special defense that the plaintiffs action was barred by the applicable statute of limitations. In Resnik v. Morganstern, 100 Conn. 38, 122 A. 910 (1923), our Supreme Court held that a plaintiff is not required to meet a defendant’s special defense at the time of a motion for nonsuit. The Resnik court determined that the trial court improperly had granted a motion for nonsuiton the basis of rescission, a special defense. “The nonsuit was wrongly granted. The plaintiff had proven the essential allegations of his complaint, and under such circumstances a nonsuit could not be granted. If it were true that the evidence also established that the contract sued on had been rescinded, the court could not grant the nonsuit. Rescission is an affirmative defense and the plaintiff is not bound to meet it in establishing his case. If this were not so, a plaintiff would be compelled to assume the burden of proving not only his own case but meeting the special defenses of the defendant.” (Emphasis added.) Id., 42; but see Carnese v. Middleton, 27 Conn. App. 530, 537-38, 608 A.2d 700 (1992) (special defense of collateral estoppel can be entertained on motion pursuant to predecessor of Practice Book § 15-8, although procedural irregularity). The defendant’s argument that the court improperly denied the motion for dismissal, based on the special defense of the statute of limitations, is misplaced. A motion for dismissal is not generally granted when based on a special defense, such as the statute of limitations, and, in this case, the court properly denied the defendant’s motion for dismissal.

II

The defendant next claims that the court improperly determined that the six year statute of limitations set forth in § 52-576 was applicable, rather than the three year statute of limitations set forth in § 52-581. Specifically, the defendant argues that the contract between the parties was oral and, therefore, § 52-581 was the applicable statute of limitations. Additionally, the defendant argues that the court improperly ignored a previous order, issued by a different judge of the Superior Court, that found that an oral contract existed between the parties. We disagree.

A

The court concluded that the six year statute of limitations applied in the present case because the contract contained an open, running account and that the contract had been executed. Before we address the issue of the proper statute of limitations, we must first determine whether the court properly concluded that an open, running account existed between the parties and that the contract had been executed. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Lenares v. Miano, 74 Conn. App. 324, 328, 811 A.2d 738 (2002); see also Novak v. Omega Plastics Corp., 60 Conn. App. 424, 427, 760 A.2d 137, cert. denied, 255 Conn. 910, 763 A.2d 1035 (2000).

An open account is defined as “[a]n unpaid or unsettled account; an account with a balance which has not been ascertained, which is kept open in anticipation of future transactions.” Black’s Law Dictionary (6th Ed. 1990). In the present case, the plaintiff charged the defendant’s first account after obtaining insurance. The defendant made periodic payments to the account, and that business relationship continued from 1986 until 1991. During that time, the defendant was never required to pay the total amount of the account. The court, therefore, correctly concluded that an open, running account existed between the parties.

The defendant argues that the court failed to apply the general rule that payments to an open, running account are applied to the oldest debt first and that under that rule, no account existed between the parties. In the present case, the defendant’s payments were applied first to the more recent second account rather than to the older first account. We disagree with the defendant’s argument.

In American Woolen Co. v. Maaget, 86 Conn. 234, 85 A. 583 (1912), our Supreme Court stated: “In the absence of evidence of a contrary intention and of any other controlling circumstances, the law presumes that the entry of payments generally as credits upon an open, running merchant’s account, indicates the intention of the creditor to apply the payments to the earliest items of the account. The rule, although general, is, by no means, universal. It is not an artificial or arbitrary principle, but one founded merely on the presumed intention of the parties; and is applicable only where there is no evidence sufficient to show a contrary intention.” (Emphasis added; internal quotation marks omitted.) Id., 247-48.

In the present case, the plaintiffs bookkeeper sent a letter to the defendant stating that all payments made after February, 1991, would be applied to the second account with any excess to be applied to the first account. Moreover, the overpayments made by the defendant in September, 1991, and March, 1993, were credited to the first account without objection by the defendant. Furthermore, the defendant endorsed the insurance company dividend check to the plaintiff, which applied the funds to the first account, an action that the court found demonstrated the defendant’s intent to acknowledge the debt. We conclude, therefore, that the court properly determined that an open, running account existed between the parties.

B

We next consider whether the court applied the proper statute of limitations. The defendant argues that the contract between the parties was oral and therefore that the three year statute of limitations applied. We disagree.

As an initial matter, we set forth the applicable standard of review. “The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); see also Lenares v. Miano, supra, 74 Conn. App. 328.

The Supreme Court has explained the difference between §§ 52-576 and 52-581. “If [General Statutes] §§ 6005 [now § 52-576] and 6010 [now § 52-581] are to be construed to make a harmonious body of law, it is necessary to restrict the latter ... to executory contracts. Section [52-576] limits to six years actions on simple, that is parol, contracts; § [52-581] limits to three years actions on contracts not reduced to or evidenced by a writing, that is, contracts resting in parol; and unless the latter is intended to apply only to executory contracts there would be different limitations established for actions of the same type, that is, those on parol contracts, a result which the legislature could not have intended.” (Citation omitted; emphasis added; internal quotation marks omitted.) Tierney v. American Urban Corp., 170 Conn. 243, 248, 365 A.2d 1153 (1976); Hitchcock v. Union & New Haven Trust Co., 134 Conn. 246, 259, 56 A.2d 655 (1947); Novak v. Omega Plastics Corp., supra, 60 Conn. App. 428.

In Cupina v. Bernklau, 17 Conn. App. 159, 551 A.2d 37 (1988), we explained the distinction between §§ 52-576 and 52-581. “These two statutes, each estabhshing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts.” (Emphasis added.) Id., 163. A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations. Id.; see Tierney v. American Urban Corp., supra, 170 Conn. 249 (oral contract was executed when plaintiff had done everything he had contracted to do); Campbell v. Rockefeller, 134 Conn. 585, 587-88, 59 A.2d 524 (1948); Hitchcock v. Union & New Haven Trust Co., supra, 134 Conn. 259. It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the defendant’s argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed.

In the present case, the plaintiff had performed all of its contractual obligations fully by obtaining the insurance on behalf of the defendant. All that remained was for the defendant to provide payment for the plaintiffs services. As a result, the contract was not executory in nature, and the six year statute of limitations in § 52-576 applied. Accordingly, the trial court properly determined that issue.

Ill

The defendant next claims that the court improperly found that the statute of limitations was tolled. Specifically, the defendant argues that it was improper for the court to find that the statute of limitations was tolled because (1) the parties did not have an agreement as to how the first account was to be paid, (2) the plaintiffs unilateral action was insufficient to toll the statute and (3) the defendant did not make an unequivocal acknowledgment of the debt. We disagree.

In Cadle Co. v. Errato, supra, 71 Conn. App. 461, this court stated: “The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account. . . . Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact. ... As with other questions of fact, unless the determination by the trial court is clearly erroneous, it must stand. . . .

“A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute. . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations. ... [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor’s presence and he did not contradict the assertion.” (Citations omitted; internal quotation marks omitted.) Id., 461-62.

In the present case, the court heard evidence that the plaintiff had sent the defendant a letter indicating that any excess payment to the second account would be applied to the first account. In September, 1991, the plaintiff applied $8367 to the first account. In March, 1993, the plaintiff applied $825 to the first account’s balance. Finally, in February, 1994, the defendant signed an insurance check over to the plaintiff. The court found that all of those transactions indicated the intent of the defendant to acknowledge and to pay the first account’s balance. We cannot say that this finding was clearly erroneous. We conclude, therefore, that the court properly found that the defendant had acknowledged the entire debt and that the statute of limitations was tolled.

IV

The defendant’s final claim is that the court improperly refused to find that the plaintiff had acted with an inexcusable delay in filing its action and that the defendant was prejudiced by that delay. Specifically, the defendant argues that as a result of the plaintiffs delay, all of the defendant’s records regarding the dispute were lost and that the defendant was unable to recall the circumstances of the dispute. We are not persuaded.

We first set forth the applicable standard of review. “The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. ... A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court’s findings of fact unless they are clearly erroneous.” (Internal quotation marks omitted.) Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn. App. 760, 776, 814 A.2d 403, cert. granted on other grounds, 263 Conn. 904, 819 A.2d 840 (2003).

Our Supreme Court has stated that “[t]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit. . . . Delay alone is not sufficient to bar a right . . . .” (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987).

In Giordano v. Giordano, 39 Conn. App. 183, 664 A.2d 1136 (1995), this court stated: “The defendant misunderstands the nature of a laches defense. A laches defense is not, as he asserts, a substantive right that can be asserted in both legal and equitable proceedings. Laches is purely an equitable doctrine, is largely governed by the circumstances, and is not to be imputed to one who has brought an action at law within the statutory period. . . . It is an equitable defense allowed at the discretion of the trial court in cases brought in equity.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 214.

In the present case, it is clear that the defense of laches was not available to the defendant. The plaintiffs action, an action at law, was filed within the applicable statute of limitations. We conclude, therefore, that the court properly refused to find that the defense of laches was applicable.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

       General Statutes § 52-581 (a) provides: “No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”

       Specifically, the insurance coverage included business liability, automobile liability and workers’ compensation. The plaintiff also obtained, on behalf of the defendant, bonds for municipal contracts.

       The defendant’s other special defenses are not part of this appeal.

       It is axiomatic that “an action is brought on the date on which the writ is served on a defendant.” (Internal quotation marks omitted.) Raynor v. Hickock Realty Corp., 61 Conn. App. 234, 238, 763 A.2d 54 (2000); see also Seaboard Burner Corp. v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958).

       The court stated that it “further finds that the defendant has failed to prove . . . inexcusable delay. The delay may have been a poor business decision, but since the suit was filed within the six years permitted by General Statutes § 52-576, the court will not bar it as untimely on any other grounds.”

       Our Supreme Court has stated that “a motion for a judgment of dismissal has replaced the former nonsuit for failure to make out a prima facie case.” Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983).

       As we will discuss, the fact that a contract is oral is not dispositive as to the proper statute of limitations. The defendant’s argument, therefore, is without merit.

       Although the trial court used the March, 1993 date to determine whether the February, 1999 filing was timely, it noted later in its memorandum of decision that the plaintiff had until six years after the February, 1994payment to file the action.

       The defendant’s special defense does not actually use the term “laches.” The defendant alleged that the “plaintiff’s Revised Complaint has been brought after an inexcusable delay and the defendant has been prejudiced by this delay.” We therefore interpret that special defense, as alleged by the defendant, to mean laches.