text:
    BEST FRIENDS PET CARE, INC. v. DESIGN LEARNED, INC., ET AL.
    (AC 23330)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued February 24
    officially released June 3, 2003

      Stuart G. Blackburn, with whom, on the brief, was Margaret Ralphs, for the appellant (plaintiff).

      Barbara A. Frederick, with whom, on the brief, were Donald W. Doeg and John B. Kennedy, for the appellee (named defendant).
   Opinion

BISHOP, J.

This is an appeal from the summary judgment rendered by the trial court in favor of the defendant Design Learned, Inc. (Design Learned), in an action for negligence. The plaintiff, Best Friends Pet Care, Inc. (Best Friends), raises several claims on appeal, all of which concern the applicability of a waiver of subrogation clause in a construction contract. We affirm in part and reverse in part the judgment of the trial court.

From the pleadings and materials filed in conjunction with the motion for summary judgment, the following undisputed facts emerge. Best Friends was the owner and operator of a chain of pet care facilities, including one that was under construction in Rocky Hill. The project in Rocky Hill was undertaken pursuant to a construction management agreement (contract) between Best Friends and the construction manager, Highland Management Associates, Inc. (Highland). The contract, which was a standard American Institute of Architects (AIA) contract, contained a waiver of subrogation clause stating in relevant part that Best Friends and Highland “waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance . . . .” Design Learned had been retained by Highland as a consultant pursuant to an agreement between itself and Highland, whereby Design Learned would provide design consulting services for the Best Friends project.

On January 12, 1998, while still under construction, the Rocky Hill facility was consumed by fire and destroyed. Best Friends alleges that the fire started because the boiler was not installed with the proper clearance from the flooring, which ignited. The Hartford Insurance Company (the Hartford), which was the insurer of Best Friends, reimbursed Best Friends for the loss, which included $1,049,000 for damage to the building, $446,739 for loss of income resulting from loss of use of the building and $77,714.30 for damage to personal property.

Best Friends brought this subrogation action against several of Highland’s contractors and consultants, including the defendants American Standard Companies, Inc., a contractor, and Design Learned. Those defendants filed motions for summary judgment on the theory that the contract between Best Friends and Highland contained a valid waiver of subrogation clause that foreclosed the possibility of Best Friends’ instituting a subrogation action against either contractors or consultants. Best Friends argued that General Statutes (Rev. to 1997) § 52-572k made void waiver of subrogation provisions in construction contracts. It also argued that the waiver would be inapplicable to Design Learned in any event because, inter alia, Highland had failed to obtain a similar waiver from Design Learned in their agreement.

The court granted the motions for summary judgment in favor of both defendants. Best Friends challenges only the granting of the motion in favor of Design Learned. It makes the following claims: (1) that the waiver of subrogation clause is void pursuant to § 52-572k; (2) that the allegedly negligent conduct by Design Learned predated and was outside the scope of the contract; (3) that Design Learned forfeited the protection of the contract by not including a waiver of subrogation provision in its own agreement with Highland; and (4) that neither personal property loss nor loss of use are within the scope of the waiver. We affirm the judgment of the trial court on all but the last claim.

I

The threshold question and a question of first impression for this court concerns the effect of § 52-572k (statute) on the waiver of subrogation provision in this standard AIA contract. We note that “[i]n general, whether conduct falls within a statute’s province is a matter of statutory construction, and presents a question of law warranting plenary review.” Sandella v. Dick Corp., 53 Conn. App. 213, 226, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).

In essence, the question we must answer to dispose of the first claim is whether the waiver of subrogation clause is, effectively, a hold harmless or indemnification provision, as those terms are used by the statute. A closer examination of the AIA contract and the statute is required for that discussion.

We begin with a look at the AIA contract, AIA Document B801/CMa, which explicitly incorporates AIA Document A201/CMa. Section 10.4 of B801/CMa, entitled “Waivers of Subrogation,” states in relevant part that “[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201/ CMa . . . .” The property insurance provision, § 11.3, of A201/CMa requires that the owner purchase property insurance “for the entire Work at the site on a replacement cost basis . . . .” Section 11.1.1 of B801/CMa requires the construction manager to purchase insurance, inter alia, to cover all workers compensation and other claims for personal injury at the site.

General Statutes (Rev. to 1997) § 52-572k (a) provides in relevant part: “Any . . . agreement . . . entered into in connection with or collateral to a contract or agreement relative to the construction ... of any building, structure or appurtenances thereto . . . that purports to indemnify or hold harmless the promisee against liability for . . . damage to property caused by or resulting from the sole negligence of such promisee, his agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by a licensed insurer.”

The first question for our consideration is whether the previously described provisions of the contract fall within the contours of the statute. In interpreting the statute, “we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

From the language of the statute, it is unclear whether the waiver of subrogation in the AIA contract reasonably can be viewed as a provision to hold harmless or to indemnify, as those terms are used in the statute. Similarly, our review of the legislative history of the statute provides us with no guidance on whether waivers such as the type just described are within the scope of the statute.

Although this court has never addressed the question of the applicability of the statute to an AIA contract waiver of subrogation clause, because the AIA contract is used nationally, and other states have enacted statutes (or follow common law) similar to § 52-572k, the question has been addressed elsewhere. In the absence of a pointed legislative history, we find useful a review of those decisions from other jurisdictions construing similar statutes and assessing their applicability to the standard AIA waiver of subrogation provision.

Of particular note is Ralph Korte Construction Co. v. Springfield Mechanical Co., 54 Ill. App. 3d 445, 369 N.E.2d 561 (1977), in which the Illinois Appellate Court interpreted an Illinois statute that was nearly identical to § 52-572k as it related to a waiver of subrogation clause in a construction contract. There, the court found that the purpose of the statute was to protect workers and the public from injury, and to keep “ ‘persons having charge of the work’ id., 446; from avoiding liability or shunting it onto contractors or subcontractors. The court concluded that “the parties had agreed, in effect, to assume the risk of loss as between themselves due to fire or other perils, to the extent each party was covered by insurance. . . . Both sides benefit from the arrangement and such benefit . . . does not come at the expense of a third party.” Id., 447.

New York courts, interpreting a sindlarly worded statute, also have held that waiver of subrogation provisions are not within its purview. In Board of Education v. Valden Associates, Inc., 46 N.Y.2d 653, 389 N.E.2d 798, 416 N.Y.S.2d 202 (1979), the New York Court of Appeals weighed the effect of § 5-323 of New York’s General Obligations Law, which proscribed contractual exemptions for liability in construction contracts, on contractual provisions that waived all rights to recovery to the extent of insurance coverage. The court found that “[a] distinction must be drawn between contractual provisions which seek to exempt a party from liability to persons who have been injured . . . and contractual provisions . . . which in effect simply require one of the parties to the contract to provide insurance for all of the parties.” Id., 657; see also Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp., 106 App. Div. 2d 242, 485 N.Y.S.2d 65, aff'd, 66 N.Y.2d 779, 488 N.E.2d 115, 497 N.Y.S.2d 369 (1985).

Ultimately, we find persuasive, as did the trial court, the distinction made by the New Hampshire Supreme Court in Chadwick v. CSI, Ltd., 137 N.H. 515, 629 A.2d 820 (1993). In Chadwick, the court distinguished between exculpatory provisions, which were forbidden by New Hampshire common law, and allocation of risk provisions, such as the kind found in the AIA contract. Id., 523. “These [AIA provisions] do not present the same concerns as naked exculpatory provisions. As opposed to exculpatory provisions . . . the insurance provisions of the standard AIA contract are not designed to unilaterally relieve one party from the effects of its future negligence, thereby foreclosing another party’s avenue of recovery. Instead, they work to ensure that injuries or damage incurred during the construction project are covered by the appropriate types and limits of insurance, and that the costs of that coverage are appropriately allocated among the parties.” (Citations omitted.) Id.; see also Behr v. Hook, 173 Vt. 122, 128, 787 A.2d 499 (2001) (upholding waiver of subrogation provision in AIA contract).

We agree that this arrangement embedded in the AIA contract to share the risks and the obligation of insuring the persons and property at the site does not fit the description of an agreement to hold harmless or to indemnify. Having concluded that the statute does not render as void a waiver of subrogation provision when coupled with agreements to allocate the cost and responsibility of insurance, as is the case with this standard AIA contract, we further conclude that the plaintiffs first claim is without merit.

II

The resolution of the remainder of the claims depends on a closer examination of the contract. We note the standard of review. If contract language is definitive of the parties’ intent, then the interpretation of the language becomes a question of law for the court. B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 71, 807 A.2d 1001 (2002). Additionally, a presumption that the language is definitive arises when, as here, the contract is between sophisticated parties and commercial in nature. Id. Our review, in such a case, is plenary. Id.

If, however, the language is not clear, then the intention of the parties as represented in the contract becomes a question of fact. Id. If the fact in question is genuinely material to the resolution of the issue, then it is not the proper subject of summary judgment. In considering a motion for summary judgment, the function of the court is to determine whether any material fact is in dispute, not to make factual findings. See Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 522-23, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Tarnowsky v. Socci, 75 Conn. App. 560, 564, 816 A.2d 728 (2003). In the determination of whether summary judgment was properly granted, our review is, again, plenary. Id.

A

Best Friends claims that the allegedly negligent conduct by Design Learned predated the signing of the contract between Highland and Best Friends, was outside the scope of the contract and, therefore, should not receive the benefit of the waiver of subrogation clause found in the contract. Unfortunately for Best Friends, the waiver of subrogation provision on which Design Learned relies, and that we have found to be applicable, makes no reference to the timing of the work, or the timing of the hiring, or anything but the status of Design Learned as consultant. Specifically, the contract states that “[t]he Owner and Construction Manager waive all rights against each other and against . . . consultants ... for damages . . . .”

Design Learned was hired by Highland prior to the signing of the contract between Highland and Best Friends, and engaged in work as a consultant for Highland from that time on. The only agreement that Design Learned had, relative to the project, was with Highland. The court determined that the dispositive question in that regard, therefore, was whether the contract between Highland and Best Friends engaged Highland to do the work for which Best Friends was claiming Design Learned was negligent. Best Friends claims that some of the services that Design Learned provided for Highland, in particular the consultation on prototype facilities, should be severable from those services for which the contract, with its waiver of subrogation provision, constituted the agreement.

The plain language of the agreement, however, provides little room for that result: The contract is broadly inclusive of the labor for which Highland was hired. “The Contract represents the entire and integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either written or oral.” As defined by the contract, “ ‘[w]ork’ means the construction and services required by the [c]ontract . . . whether completed or partially completed, and includes all other labor, materials, equipment and services provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or part of the Project.” Further, “[t]he Project is the total construction of which the Work performed under the [c]ontract . . . may be the whole or apart . . . .” Finally, “drawings” are defined as “the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued . . . .” (Emphasis added.)

“In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. ... A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 71.

We agree with the court that the work provided by Design Learned for Highland, which is the subject of this action, was “clearly within the construction manager’s obligations under the [contract].” We conclude, therefore, that the court properly found from the unambiguous language of the contract that Design Learned was a consultant, subject to the waiver of subrogation provision.

B

Best Friends next claims that Design Learned cannot enjoy the benefits of the waiver of subrogation provision because no waiver of subrogation provision was included in the agreement between itself and Highland, as required by the contract. It is uncontested that the agreement between Design Learned and Highland contained no such waiver.

The disposition of Best Friends’ claim revolves around a determination of the parties’ intent as to the purpose of the waiver of subrogation provision. The waiver of subrogation provision in the contract is comprised of two sentences. The first provides in relevant part that “[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in [the contract documents] . . . .” The second sentence provides, in relevant part, that “[t]he Owner and Construction Manager shall each require similar waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded separate contracts . . . .”

As previously discussed, the court determined, and we agree, that the purpose of the waiver of subrogation provision was, in conjunction with the other contractual provisions, to allocate risks and costs among the parties to the contract. The first sentence of the waiver evinces the clear intent that the parties waive all rights against each other and their consultants, but only to the extent covered by property insurance, except such rights as they may have to the proceeds of the insurance. Here, the principle expressio unius est exclusio alterius is of some assistance. Had the parties wanted to make the waiver referenced in the first sentence contingent on the parties’ obtaining waivers from their consultants, then the proper place for that requirement would have been alongside the conditionals in the first sentence.

Examining the purpose of the waiver of subrogation, we further note that the failure of Highland to obtain a waiver of subrogation provision from Design Learned does not thwart the intent of the parties to the contract. The court found that the clearly expressed intent of the contract was that parties to the contract waive all subrogation claims against each other and their consultants. Additionally, it found that the absence of a similar agreement between Highland and Design Learned does not obscure that clarity, nor does its absence “affect the validity of the waiver provision in the [contract] between Best Friends and Highland.” We agree with the court.

C

Best Friends’ final claim is, essentially, that the definition of property insurance, as used in the waiver of subrogation provision, does not include insurance either for personal property or for loss of use. After the fire that destroyed the facility, the Hartford paid Best Friends for the loss pursuant to its insurance policy. Specifically, the Hartford paid $1,049,000 for damage to the building, $446,739 for loss of income resulting from damage to the building and $77,714.30 for damage to personal property.

Again, we turn to the language of the contract. The relevant language in the waiver of subrogation clause provides that “[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of ALA. Document A201/Cma . . . .” (Emphasis added.) Although property insurance is not explicitly defined in B801/CMa, reference to A201/CMa is helpful. Indeed, A210/CMa dedicates an entire section to the topic of property insurance.

Section 11.3.1 of A201/CMa requires the owner to purchase property insurance “for the entire [w]ork at the site on a replacement cost basis . . . .” Section 11.3.1.1 states in relevantpart: “Property insurance shall be on an ‘all-risk’ policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, falsework, temporary buildings and debris removal including demolition . . . .” Section 11.3.1.4 states that “this property insurance shall cover portions of the [w]ork stored off the site . . . and also portions of the [work] in transit.”

The term property insurance, then, is meant to protect property that can be moved, stored off-site and stolen. Those mobile attributes axe most typically the features of tangible, personal property. In § 11.3.1.5, an exception is made for personal property such as machinery, tools and equipment owned or rented by the contractor: Such personal property is not to be covered by the property insurance as it is defined in the contract. If the parties intended that no personal property was to be covered by the property insurance, then that provision would be redundant.

Our policy is to interpret contract language in accordance with a fair and reasonable construction of the written words given their common, natural and ordinary meaning when we can sensibly do so. Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 725-26, 805 A.2d 76 (2002). Here, we can do so, and we conclude, as did the court, that the term property insurance, as used in the contract, embraces insurance for both real and personal property.

Our final inquiry is whether the same language described previously also is meant to include insurance for loss of use of the personal and real property. We believe that it does not. By the same lights that we have concluded that the term property insurance includes tangible personal property, we find no indication that it is meant to include intangible property such as reimbursement for loss of use. That distinction was drawn in B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 74, in which this court concluded that property that could be “ ‘stored, used, maintained or kept on the . . . premises’ ” necessarily was tangible property. “Economic loss, including lost business profits, is intangible, speculative in nature and certainly cannot be stored, used, maintained or kept on any premises.” Id. We find no indication that the term property insurance was intended to encompass intangibles; to the contrary, the contract language refers specifically to “physical loss.”

Furthermore, the contract expressly addresses the matter of loss of use insurance. Section 11.3.3 of A210/ CMa, entitled Loss of Use Insurance, states in relevant part that “[t]he owner, at the [o]wner’s option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner’s property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner’s property, including consequential losses due to fire or other hazards however caused.” (Emphasis added.)

In contrast to the waiver of subrogation provision § 10.4 in B801/CMa, in which the parties to the contract waive all rights against each other and the “Contractors, Architect, consultants, agents and employees of any of them” to the extent covered by property insurance, the loss of use provision is far more restrictive. Here, solely for rights of action for loss of use, the owner waives its rights only against “the Contractor.”

We find it instructive to our analysis that the term “contractor” is used differentially within the contract. The contractor, in the singular, is defined as the contractor identified as such in the contract. As the contract in question is between the owner and construction manager, no specific contractor is identified. Contractors, in the plural, are defined in A201/CMa as “persons or entities who perform construction under Conditions of the Contract.” (Emphasis added.) Significantly, subcontractors are defined differently as persons or entities that have “a direct contract with the Contractor to perform a portion of the work at the site.” (Emphasis added.) Sub-subcontractors also are separately defined. No definition is provided for consultants.

Plainly, the terms consultant and contractor are not used interchangeably in the contract. Given the broad reach of language of the principal waiver of subrogation clause, if the parties had intended the provision regarding loss of use to pertain to an equally broad spectrum of actors, the parties readily could have formulated language to accomplish that goal.

We note, also, that in the complaint, Best Friends alleged that Design Learned “was engaged in the business of . . . engineering consulting and design consulting.” In Design Learned’s memorandum of law in support of its motion for summary judgment, it asserts that it “provided consulting services to Highland on the [Best Friends] project pursuant to the agreement between [Design Learned] and Highland. . . .’’It appears undisputed, therefore, that the parties herein and the contracting entities considered Design Learned to be a consultant and not a contractor.

The court found that the waiver of subrogation in the contract precluded Best Friends from maintaining its action against Design Learned as a matter of law. While we agree that the action is foreclosed as to recovery for lost property to the extent covered by property insurance, we disagree that, as a matter of law, an action for recovery for loss of use of the property similarly is foreclosed.

The judgment is reversed only as it relates to the claim that Design Learned negligently caused Best Friends to lose business profits and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The trial court also rendered summary judgment in favor of the defendant American Standard Companies, Inc. The plaintiff does not appeal from that portion of the judgment.

       We note that Best Friends, as the plaintiff, is acting on behalf of the real party in interest, the Hartford Insurance Company, who is the subrogee in this action.

       General Statutes (Rev. to 1997) § 52-572k (a) provides: “Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of such promisee, his agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by a licensed insurer.”

       The full title of the main contract is “AIA Document B801/CMa Standard Form of Agreement Between Owner and Construction Manager, 1992 Edition.” It incorporates on page one the 1992 editions of AIA Documents B141/ CMa, A101/CMa and A201/CMa.

       The entire clause states: “Waivers of Subrogation. The Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by properly insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201/CMa, General Conditions of the Contract for Construction, Construction Manager-Adviser Edition, current as of the date of this Agreement. The Owner and Construction Manager each shall require similar waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded separate contracts administered under the Owner’s own forces.”

       But see Maryland Casualty Co. v. Trane Co., 46 Conn. Sup. 172, 742 A.2d 444 (1999), in which the court found a waiver of subrogation provision in a construction contract to be valid against the insurance company subrogee. The court did not address the impact of General Statutes § 52-572k on the waiver provision.

       The Illinois statute provides in relevant part: “With respect to contracts or agreements, either public or private, for the construction ... of a building .. . every covenant, promise or agreement to indemnify or hold harmless another person from that person’s own negligence is void against public policy and wholly unenforceable.” Ill. Rev. Stat. 1975, c. 29, para. 61, now 740 Ill. Comp. Stat. Ann. 35/1, § 1 (West 2001).

       To the extent that Design Learned’s allegedly negligently prepared drawings could be used (or have been used) in the construction of other facilities, Best Friends has made no such showing, nor has it made any showing of a secondary agreement between Best Friends and Highland that might encompass Design Learned’s work. As Design Learned points out in its brief, the complaint “is explicitly predicated on the proposition that the design work that [Design Learned] performed for Highland not only was incorporated into the facility, but also was the cause of the fire that destroyed the facility.” Any other work that Design Learned might have done for Highland, in short, is irrelevant.

       As this court has stated: “There cannot be any broader classification than the word all.” (Internal quotation marks omitted.) Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 56, 467 A.2d 1255 (1983).

       We note that Design Learned is not a party to the contract.

       The expression of one thing is the exclusion of another.

       The court in Behr v. Hook, supra, 173 Vt. 130, came to the same conclusion in interpreting the AIA waiver of subrogation provision. “[T]he contract does not make obtaining the waivers from subcontractors a condition precedent to application of the waiver of subrogation provision.” Id.

       In the hypothetical situation that it could have bearing, the proper action would be for breach of contract, and, as noted, Design Learned is not a party to the contract in question. See Behr v. Hook, supra, 173 Vt. 130.

       Best Friends, as subrogor, also claims that because the waiver of subrogation applies only “to the extent covered by property insurance,” Best Friends can recover the $5000 deductible it was not paid. We note that recovery for the deductible was not specifically pleaded, nor is there any evidence in the record why the Hartford should recover for the deductible paid by Best Friends, i.e., ostensibly more than the Hartford itself actually paid. Accordingly, we decline to address that claim. “[W]e are not required to review claims that are inadequately briefed. ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) State v. Davila, 75 Conn. App. 432, 441 n.6, 816 A.2d 673 (2003).

       As we already have stated, B801/CMa explicitly incorporates A201/CMa. Additionally, § 10.2 of B801/CMa provides that the “[t]erms in this [agreement shall have the same meaning as those in . . . A201/CMa . . .

       In fact, personal property is defined as “[m]oney, goods, and movable chattels.” BaHentine’s Law Dictionary (3d Ed. 1969).

       In the waiver of subrogation provision of § 11.3.7 in A210/CMa, the list additionally includes the construction manager, the owner’s other contractors, subcont ractors and sub-subcontractors.

       By those definitions, Design Learned could not be considered a contractor, as it has not performed construction. Although, arguably, it could be considered a subcontractor, we need not reach that question.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    JOHN G. FENNER v. HARTFORD COURANT COMPANY
    (AC 22836)
    Foti, Dranginis and Hennessy, Js.

      Argued February 24
    officially released June 3, 2003

      Otto P. Witt, with whom, on the brief, was John G. Fenner, pro se, for the appellant (plaintiff).

      Margaret J. Strange, with whom was James F. Shea, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, John G. Fenner, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, the Hartford Courant Company. The plaintiff had brought an action against the defendant for wrongful termination of employment in violation of public policy. On appeal, the plaintiff claims that the court improperly (1) denied him his rights to due process by refusing to waive the cost of a transcript for the entire trial for the purpose of this appeal, and (2) charged the jury in its instructions and on the special verdict form with respect to wrongful discharge of an employee.

The following facts are relevant to the plaintiffs appeal. The plaintiff was hired as a truck driver by the defendant on October 17, 1994. On December 28, 1996, the defendant received a telephone call informing it that the plaintiff had been involved in an accident that resulted in property damage to a shopping center. A supervisor for the defendant requested that the plaintiff fill out a company form entitled, “Automobile Accident or Loss Notice.” The form also stated “Reliance National Indemnity Co.” and listed a policy number. The plaintiff filled out his address, date of birth, telephone number, operator’s number and social security number. The plaintiff refused to fill out the rest of the form because he claimed that he was not involved in an accident. On January 14, 1997, the plaintiff was terminated for “failure to follow company policies and practices,” presumably for his refusal to fill out the rest of the accident report.

Thereafter, the plaintiff filed a complaint alleging that the defendant wrongfully had terminated his employment. The complaint alleged, inter alia, that “[the defendant] terminated [the plaintiffs employment] for refusing to complete the insurance form that would have required him to provide what he reasonably believed was false information to the [defendant’s] insurance carrier. . . . [The plaintiffs] refusal to provide false information on the insurance [claim] form about an alleged auto accident was protected by the important public policies of the State of Connecticut as set forth in [General Statutes § 53a-215]. This statute provides for criminal penalties for furnishing false information on insurance [claim] forms. . . . Under Connecticut law, the [defendant] wrongfully terminated [the plaintiffs employment] because it fired him for refusing to engage in activity that violated this statute.”

Following a trial, the jury returned a verdict for the defendant. The plaintiff filed an appeal and an application for a waiver of fees, including the transcript fee, on March 6, 2002. On that same day, the court granted the application for a waiver of the filing fee, but denied without prejudice the request to waive the fee for a transcript so that the plaintiff could make a specific request for transcripts.

On March 7, 2002, the plaintiff filed an application for a waiver of the fee for the transcript of the jury charge. On that same day, the court granted the application for a transcript of the jury charge. The plaintiff then filed an application for the “court transcript” on March 21,2002. On April 1,2002, the court held a hearing concerning the plaintiffs application for a waiver of fees for a transcript of the entire trial. On April 2, 2002, the court denied the plaintiffs application as to the entire trial transcript, and the plaintiff filed a motion for reconsideration on April 4, 2002. In that motion, the plaintiff stated that “[w]ithout the trial transcript, the Appellate Court will not have any factual pattern to compare the charge to in making its determination as to whether the charge was appropriate under the facts and circumstances as presented. It would also be necessary to the Plaintiffs Appeal to quote said transcript in arguing other relevant issues of law.” The court denied the plaintiffs motion for reconsideration on April 17, 2002.

The plaintiffs first claim is that the court violated his due process rights when it denied his application for a waiver of fees for a transcript of the entire trial. The plaintiff has provided this court with no legal authority to support his claim. In addition, the plaintiff cannot prevail because he failed to avail himself of the proper remedy for the court’s denial of the fees.

The waiver of fees and costs for a civil appeal is governed by Practice Book § 63-6, which provides in relevant part: “If a party in any case where fees and costs may lawfully be waived is indigent and desires to appeal, that party may, within the time provided by the rules for taking an appeal, make written application, to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses. . . . The judicial authority shall assign the request for waiver of fees, costs and expenses for a hearing within twenty days of its filing and shall act promptly on the application following the hearing. ... If the court is satisfied that the applicant is indigent and entitled to an appeal because of a statutory or constitutional right to court appointed counsel or allowing an indigent party to appeal without payment of fees, costs and expenses, the court may ... (2) order that the necessary expenses of prosecuting the appeal be paid by the state. . . . The judge shall authorize a transcript at state expense only of the portions of testimony or proceedings which may be pertinent to the issues on appeal. . . .” The court gave the plaintiff a hearing and presumably did not believe that the entire trial transcript was pertinent to the plaintiffs appeal.

Practice Book § 63-6 further provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning the waiver of fees, costs and security shall be by motion for review under Section 66-6.” According to Practice Book § 66-6, the motion for review shall be filed within ten days of the notice of the order for which review is sought. The plaintiff did not file a motion for review within ten days and did not file a motion for permission to file a late motion for review with this court.

“It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. . . . These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).

The plaintiffs claim that his due process rights were denied must fail because he did not avail himself of the proper procedural vehicles to challenge the court’s determination that a transcript of the entire trial was not necessary. See Thompson v. Orcutt, 70 Conn. App. 427, 441, 800 A.2d 530, cert. denied, 261 Conn. 917, 806 A.2d 1058 (2002).

The plaintiffs second claim is that the court improperly stated the law with respect to wrongful termination in both its jury charge and on the special verdict form. Specifically, the plaintiff claims that the court’s instruction required him to prove that the defendant violated § 53a-215 to prevail on his claim of wrongful termination in violation of public policy.

The following additional facts are relevant to that issue. On January 11,2002, the plaintiff filed a proposed request to charge and verdict form that explicitly stated that he did not need to demonstrate a violation of § 53a-215, but only that he reasonably believed that the information would be used to deceive an insurance company.

On January 25, 2002, the plaintiff filed an amended proposed verdict form. The plaintiff requested the first question of the verdict form to state: “Did the plaintiff, John G. Fenner, prove, by a fair preponderance of the evidence, that the defendant, The Hartford Courant Company, wrongfully terminated his employment in violation of the public policy of the state of Connecticut?”

The court’s charge to the jury included, inter alia: “Absent a violation of public policy, the law does not permit you to second-guess an employer’s exercise of managerial discretion in deciding to terminate an employee. You are not permitted to interfere with an employer’s exercise of managerial discretion in deciding to terminate an employee. You are not permitted to interfere with an employer’s personnel decision unless it violates public policy. Now, in this case, [the plaintiff] has alleged that he was wrongfully terminated by the [defendant] in violation of the public policy of the state of Connecticut embodied in Connecticut General Statutes § 53a-215, which statute is entitled in part, ‘Insurance fraud.’ The [defendant’s] business judgment is not subject to review here. . . . Now, the public policy embodied in Connecticut General Statutes § 53a-215 is Connecticut’s policy against submitting false or misleading information to an insurance company for the purpose of deceiving it. It is not enough for [the plaintiff] to merely prove that he believed, reasonably or not, that the [defendant] intended to use his statement to file an insurance claim; rather, [the plaintiff] must prove by a preponderance of the evidence that the [defendant’s] reason for dismissing him was because he did not supply it with false or misleading information for the [defendant] to use in deceiving the [defendant’s] insurance company.”

The court’s special verdict form stated the first question as follows: “Has Plaintiff proven, by a preponderance of the evidence, that the [defendant’s] reason for discharging him violated the public policy against submitting false or misleading information to its insurance company for the purpose of deceiving it?”

The standard of review concerning claims of error injury instructions is well settled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Barrett v. Hebrew Home & Hospital, Inc., 73 Conn. App. 327, 331-32, 807 A.2d 1075 (2002).

In this case, any claim that the court’s instruction did not correctly apply the facts to the law cannot be reviewed because the plaintiff did not supply an adequate record for appellate review. We therefore review the jury instruction only with respect to whether it improperly stated the law of wrongful termination in violation of public policy without considering the facts as presented at trial.

The plaintiff alleges that the court’s instruction was contrary to our Supreme Court’s decision in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), in that the instruction required him to have proved that a specific statute was violated when his employment was terminated. We do not agree.

As a general rule, an employer is free to terminate an at-will employee’s employment with impunity. Campbell v. Plymouth, 74 Conn. App. 67, 74, 811 A.2d 243 (2002). In Sheets, our Supreme Court recognized an exception to the general rule in which an employee may have a cause of action when the employee alleges “a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 475. That exception, however, is to be construed narrowly. Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 159, 745 A.2d 178 (2000).

Our Supreme Court further stated: “We need not decide whether violation of a state statute is invariably a prerequisite to the conclusion that a challenged discharge violates public policy. Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents. For today, it is enough to decide that an employee should not be put to an election whether to risk criminal sanction or to jeopardize his continued employment.” Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 480. According to the plaintiffs complaint, he was placed in just such a situation when he allegedly was forced to violate a criminal statute or have his employment terminated.

Our Supreme Court has elaborated on the public policy exception and “recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [w]e look to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 581, 693 A.2d 293 (1997).

We do not agree that the court’s instruction required the plaintiff to prove a violation of § 53a-215. The court stated that “the public policy embodied in Connecticut General Statutes § 53a-215 is Connecticut’s policy against submitting false or misleading information to an insurance company for the purpose of deceiving it. . . . [The plaintiff] must prove by a preponderance of the evidence that the [defendant’s] reason for dismissing him was because he did not supply it with false or misleading information for the [defendant] to use in deceiving the [defendant’s] insurance company.” (Emphasis added.) From those instructions, it is clear that the plaintiff did not have to demonstrate a violation of § 53a-215, only that he was asked to supply false information to assist the defendant in deceiving an insurance company. The special verdict form also stated that the plaintiff must prove that the false information was “for the purpose of deceiving [the insurance company].” (Emphasis added.)

Those instructions did not make the plaintiff prove a direct violation of § 53a-215. The plaintiff was required to prove only that the false information was intended to be used in a manner that could deceive an insurance company within the public policy contained in § 53a-215. In Sheets, our Supreme Court stated that an employee should not be placed in a situation in which he is forced to risk a criminal penalty or jeopardize his future employment. Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 480; see also Faulkner v. United Technologies Corp., supra, 240 Conn. 583. The court’s instruction precisely followed that proposition.

The plaintiff further argues that he should have had to prove only that he reasonably believed the information was going to be used to deceive an insurance company, not that the information actually would be submitted to an insurance company in a fraudulent manner. After a thorough review of the case law, we can find no support for the proposition that the employee’s subjective beliefs can be the basis for the public policy exception in an action for the wrongful termination of an at-will employee.

All of the cases that fall within the exception to an employer’s immunity discuss the defendant’s actual violation of the public policy. See, e.g., Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002) (“we have rejected claims of wrongful discharge that have not been predicated upon an employer’s violation of an important and clearly articulated public policy”); Parsons v. United Technologies Corp., 243 Conn. 66, 86, 700 A.2d 655 (1997) (“we are not holding that an at-will employee can contest his or her discharge based on a subjective belief that an employer’s directive would pose a threat to the employee’s health and safety” [emphasis in original]); Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986) (“[e]mployee job security, however, is protected against employer actions that contravene public policy”).

The plaintiffs subjective belief is not relevant under the facts he alleged. To hold otherwise would defeat the general immunity allowed an employer to discharge an at-will employee. The court’s instruction properly placed the burden on the plaintiff to demonstrate objectively that the defendant’s conduct violated public policy.

The court’s instruction did not misstate the public policy exception for the wrongful termination of an at-will employee, nor did it improperly place the burden on the plaintiff to demonstrate that a direct violation of a statute had occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       As discussed in this opinion, the plaintiff did not provide this court with a transcript of the trial. The facts, therefore, are taken from the plaintiffs complaint, the defendant’s answer, the parties’ briefs and the exhibits presented at trial.

       The plaintiff did not file a motion for articulation and therefore, this court has no record of the trial court’s reasoning for denying the plaintiffs application. “[W]e read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) Thompson v. Orcutt, 70 Conn. App. 427, 441, 800 A.2d 530, cert. denied, 261 Conn. 917, 806 A.2d 1058 (2002).

       The plaintiffs brief stated several claims with respect to the court’s instruction on the law of wrongful discharge. One of the plaintiffs claims on appeal is that the court failed to adapt the law to the case in question. See Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000). We are unable to address this claim because the record is inadequate for review of that issue. As stated previously, the appellant has the duty to provide this court with an adequate record for review. Senco, Inc. v. Fox-Rich Textiles, Inc., 75 Conn. App. 442, 443 n.2, 816 A.2d 654, cert. denied, 263 Conn. 916, 821 A.2d 770 (2003).
      We have consolidated the plaintiffs remaining issues for the purpose of this opinion because they all relate to the single issue of whether the court misstated the law concerning wrongful discharge.

       General Statutes § 53a-215 (a) provides: “A person is guilty of insurance fraud when the person, with the intent to injure, defraud or deceive any insurance company: (1) Presents or causes to be presented to any insurance company, any writt en or oral statement including computer-generated documents as part of, or in support of, any application for any policy of insurance or a claim for payment or other benefit pursuant to such policy of insurance, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such application or claim; or (2) assists, abets, solicits, or conspires with another to prepare or make any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any application for any policy of insurance or any claim for payment or other benefit pursuant to such policy of insurance, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such application or claim for the purposes of defrauding such insurance company.”

       The plaintiffs proposed charge included the following: “To maintain a claim for wrongful discharge under Connecticut law requires only that [the plaintiff] show ‘a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.’ This public policy may be derived from the specific provisions of a statute or it may be judicially conceived. If that policy is embodied in a statute, it is not necessary that [the plaintiff] show that the defendant was actually violating the statute in order to make his case. The Connecticut law of wrongful discharge does ‘not require a violation of a statute, federal or state, to maintain the cause of action, just a violation of the public policy expressed in a statute.’ Thus, [the plaintiff] does not have to show that either his conduct or the defendant’s conduct actually violated a Connecticut statute. All he needs to show is that the reason why the defendant terminated him is a reason that violates one of the purposes for which a statute was passed. . . . Because [the plaintiff] does not need to prove what he claims the defendant asked him to do would have been a direct violation of [General Statutes] § 53a-215, he does not need to prove that the form involved was actually used for insurance purposes or that insurance was involved in paying for any losses the defendant believed [the plaintiff has] caused. . . . In order to win this case, however, [the plaintiff] must prove that the defendant’s conduct placed him in a position where to prevent his firing he had to provide what he thought was untruthful information on what he believed was an insurance form. He must prove that he had a reasonable belief that this was true. . . . For this reason, I instruct you as follows. If you find, by a fair preponderance of the evidence, that the defendant terminated [the plaintiffs] employment because [the plaintiff] had refused to provide what [the plaintiff] reasonably believed was false information on what he also reasonably believed was an insurance form, then the defendant wrongfully terminated [the plaintiff] for reasons that violate the public policy of the State of Connecticut. In that case, you must issue a verdict for [the plaintiff] on his complaint.”

       We also note that the plaintiff did not allege that the defendant required him to put false information on the form. He alleges that they terminated his employment because continuing to fill out the form “would have required him to provide what he reasonably believed was false information to the [defendant’s] insurance carrier” in violation of public policy. The plaintiff does not state what false information he was requested to provide. In examining similar forms previously completed by the plaintiff for unrelated incidents, there is a space to describe the incident. There is no evidence that the plaintiff was instructed to fabricate an accident, and it seems reasonable that he could have described his version of events in the space provided.