author: CALLAHAN, C. J. BERDON, J.,

text:
    SPRINGDALE DONUTS, INC. v. AETNA CASUALTY AND SURETY COMPANY OF ILLINOIS ET AL.
    (SC 15918)
    Callahan, C. J., and Borden, Berdon, Norcott and McDonald, Js.

      Argued November 5, 1998
    officially released March 2, 1999

      Leo Gold, for the appellant (plaintiff).

      Peter J. Ponziani, with whom, on the brief, were Charles E. Vermette, Jr., and Christopher L. Jefford, for the appellees (defendants).
   Opinion

CALLAHAN, C. J.

The sole issue in this appeal is whether contracts of insurance that the plaintiff, Spring-dale Donuts, Inc., purchased from the defendants, Aetna Casualty and Surety Company of Illinois, Farmington Casualty Company and Aetna Casualty and Surety Company, required the defendants to defend and to indemnify the plaintiff with respect to claims brought against it by two of its employees, Helen Ritch and her daughter, Tina Ritch (claimants). We conclude that they did not.

The following facts and procedural history are undisputed. The plaintiff is the operator of a Dunkin’ Donuts shop (shop) located on Hope Street in Stamford. During parts of 1992 and 1993, the plaintiff employed the claimants as cashier-clerks at the shop. In 1995, the claimants brought separate actions in federal court against the plaintiff, claiming that they had been the victims of sexual harassment and discrimination in the workplace. Specifically, the claimants alleged that in the course of their employment at the shop, a fellow employee, Sherif Mohamed, had sexually assaulted them and had made frequent lewd and lascivious remarks, requests and gestures to them. Maintaining that they had suffered mental anxiety and distress, and humiliation as a result of Mohamed’s conduct, the claimants sought to recover damages from the plaintiff for negligent failure to remedy sexually harassing conduct in the workplace, for sexual discrimination in violation of General Statutes § 46a-60 (a) (8), and for sexual harassment in violation of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000e et seq.

Thereafter, the plaintiff sought coverage from the defendants for the claims that had been brought against it by the claimants. The plaintiff relied on the following contracts, or policies, of insurance: (1) a workers’ compensation and employer’s liability policy (workers’ compensation policy) issued by Farmington Casualty Company; (2) a commercial general liability policy issued by Aetna Casualty and Surety Company of Illinois; and (3) a commercial excess liability (umbrella) policy issued by Aetna Casualty and Surety Company. The defendants denied coverage under the policies, and refused to defend or indemnify the plaintiff with respect to the claimants’ actions. The plaintiff subsequently reached settlement agreements with the claimants. Thereafter, the defendants refused to reimburse the plaintiff for expenses related to those settlements.

In March, 1996, the plaintiff instituted the present action against the defendants, seeking damages under the theories of waiver, breach of contract and violation of the covenant of good faith. The trial court determined that the policies did not provide coverage for the underlying claims and concluded, therefore, that the defendants had no duty to defend or indemnify the plaintiff with respect to the underlying claims. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

On appeal, the plaintiff claims that the trial court improperly concluded that the defendants had no duty to defend it in the underlying actions brought by the claimants. Specifically, the plaintiff argues that: (1) the workers’ compensation policy provides coverage for the underlying actions, although the underlying complaints do not state claims for workers’ compensation benefits; (2) the allegations contained in the underlying complaints fall within the slander and invasion of privacy provisions of the commercial general liability policy; and (3) the personal injury and bodily injury provisions of the umbrella policy provide coverage for the underlying claims. We disagree.

Before reaching the merits of the dispute between the parties, we set forth the standard of review. “It is the function of the court to construe the provisions of the contract of insurance.” Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). The “[interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). “The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.” (Citations omitted; internal quotation marks omitted.) Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 324-25, 714 A.2d 1230 (1998). “A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.” (Citation omitted; internal quotation marks omitted.) Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992). “[B]ecause the proper construction of a policy of insurance presents a question of law, the trial court’s interpretation of the policy is subject to de novo review on appeal.” Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 483, 697 A.2d 680 (1997).

I

The plaintiff first contends that the trial court improperly concluded that, under its workers’ compensation policy, the defendants had no duty to defend the plaintiff against the claimants’ underlying claims. Specifically, the plaintiff contends that: (1) the coverage provisions of the workers’ compensation policy are ambiguous and, therefore, must be construed against the defendants; and (2) so construed, the coverage provisions of the policy encompass not only claims for workers’ compensation benefits, but also actions, such as the underlying claims, that are based upon allegations possibly capable of supporting claims for workers’ compensation benefits. We are unpersuaded.

We note at the outset that it is well settled that “an insurer’s duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint. See, e.g., Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 138, 267 A.2d 660 (1970). The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. ... It necessarily follows that the insurer’s duty to defend is measured by the allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend. ... On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend. Smedley Co. v. Employers Mutual Liability Ins. Co., [143 Conn. 510, 517, 123 A.2d 755 (1956)].” (Citations omitted; internal quotation marks omitted.) Flint v. Universal Machine Co., 238 Conn. 637, 646-47, 679 A.2d 929 (1996). Thus, only if the underlying complaints set forth a cause of action within the coverage of the plaintiffs workers’ compensation policy did the policy obligate the defendants to defend the plaintiff in those actions. We turn our attention, therefore, to the terms of the plaintiffs workers’ compensation policy.

The plaintiff maintains that the language of the coverage provisions of the workers’ compensation policy is ambiguous. Part 1 (C) of the plaintiffs policy provides that the insurer has “the right and duty to defend at [its] expense any claim, proceeding or suit against [the plaintiff] for benefits payable by this insurance. . . . [The insurer has] no duty to defend a claim, proceeding or suit that is not covered by this insurance.” Part 1 (B), pertaining to benefits payable by the workers’ compensation policy, provides that the insurer “will pay promptly when due the benefits required of [the plaintiff] by the workers compensation law. ” Thus, the policy unambiguously states that the defendants are obligated to defend any claim, proceeding or suit against the plaintiff for benefits payable by the workers’ compensation policy. The benefits payable by the workers’ compensation policy are limited to only those required of the plaintiff by workers’ compensation law. Consequently, the defendants are obligated to defend any claim, proceeding or suit against the plaintiff for benefits payable by the plaintiff pursuant to the workers’ compensation law. Thus, if the plaintiff is not required to pay benefits under the workers’ compensation law, the coverage of the policy clearly is not invoked and, therefore, the defendants’ duty to defend is not triggered. See Plainville v. Travelers Indemnity Co., 178 Conn. 664, 425 A.2d 131 (1979) (insurance contract covering workers’ compensation liability does not cover claims for benefits pursuant to General Statutes § 7-433c).

In the plaintiffs view, the use in part 1 (C) of the word “suit” in the phrase “defend . . . any claim, proceeding or suit against [the plaintiff] for benefits payable by this insurance” creates an ambiguity because, in order to recover workers’ compensation benefits, employees bring “claims” rather than “suits” against their employers. We previously have stated, however, that we “will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 703, 569 A.2d 1131 (1990). Viewed in its entirety, the policy language unequivocally indicates that the policy was intended to provide coverage only for claims for workers’ compensation benefits. Because the underlying claims were filed in federal court, not with the workers’ compensation commission, and did not state any claims for workers’ compensation benefits, the underlying claims are not within the purview of the plaintiffs workers’ compensation policy. We conclude, therefore, that the defendants had no duty under the plaintiffs workers’ compensation policy to defend the plaintiff against the underlying claims.

II

The plaintiff next argues that the trial court improperly concluded that the defendants had no duty pursuant to its commercial general liability policy to defend the plaintiff against the underlying claims. Specifically, the plaintiff maintains that the allegations set forth in the underlying complaints are covered by the policy because (1) the allegations constitute claims for slander, and (2) they also constitute claims for invasion of privacy. We disagree with both of those arguments.

The applicable provision of the plaintiffs commercial general liability policy, which is set forth at part (1) (a) of coverage B, provides that the insurer “will pay those sums that the [plaintiff] becomes legally obligated to pay as damages because of [a] ‘personal injury’ . . . to which this insurance applies. [The insurer] will have the right and duty to defend any ‘suit’ seeking those damages. . . .” Section V (10) of the policy provides in relevant part that “ ‘[p]ersonal injury’ means injury . . . arising out of . . . [o]ral . . . publication of material that slanders ... a person . . . [or] [o]ral . . . publication of material that violates a person’s right of privacy.” (Emphasis added.) Thus, in order for the allegations of the underlying complaints to fall within the policy coverage for personal injury claims, the complaints must allege personal injury arising out of the oral “publication” of material that slandered the claimants or that violated their right of privacy.

The plaintiff maintains that the claimants’ allegations that Mohamed made frequent lewd and lascivious remarks to them constitute allegations of oral publication of such material. The term “publication,” however, generally refers to the communication of words to a third person. See Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27-28, 662 A.2d 89 (1995); Yavis v. Sullivan, 137 Conn. 253, 261-62, 76 A.2d 99 (1950). Webster’s Third New International Dictionary defines “publication” as the “communication (as of news or information) to the public.” (Emphasis added.) Publication is defined in Black’s Law Dictionary (6th Ed. 1990) as the “communicat[ion] [of] defamatory words orally ... to some third person capable of understanding their defamatory import . . . .” (Emphasis added.) Common sense dictates that a lay person would understand the term “publication” to mean the communication of words to a third person. Because the underlying, complaints did not allege “publication” of material to a third party, but instead were based entirely on comments directly made only to the claimants, we conclude that the complaints do not set forth allegations of a personal injury to which the plaintiffs commercial general liability policy applies. The policy, therefore, does not provide coverage for the underlying complaints, and, consequently, the defendants had no duty pursuant to the commercial general liability policy to defend the plaintiff in the underlying actions.

Ill

The plaintiffs final contention is that, even if the underlying claims are not within the purview of its workers’ compensation and commercial general liability policies, the plaintiffs umbrella policy nevertheless obligated the defendants to defend the plaintiff against the underlying claims. The defendants argue, however, that policy exclusions contained in the umbrella policy explicitly preclude coverage for the underlying claims. We agree with the defendants.

The applicable provisions of the umbrella policy provide coverage for personal injury and bodily injury. The policy defines “[pjersonal injury,” in relevant part, as an injury other than bodily injury arising out of “ [discrimination because of . . . sex . . . .” “Bodily injury” is defined as “bodily injury, shock, fright, mental injury, disability, mental anguish, humiliation, sickness or disease sustained by a person, including death resulting from any of these at any time.” Exclusion 3 (h) of the umbrella policy provides, however, that the policy does not apply to “ ‘[p]ersonal injury’ consisting of discrimination directly or indirectly related to the employment or prospective employment of any person or persons by any insured.” (Emphasis added.)

The plaintiff contends that the personal injury provisions of the umbrella policy obligated the defendants to defend the plaintiff against the underlying claims because those claims alleged discrimination on the basis of sex. The defendants argue, to the contrary, that, because the underlying complaints were brought to remedy discrimination directly related to the claimants’ employment, those claims specifically are excluded from umbrella policy coverage by exclusion 3 (h). The plaintiff concedes that the defendants’ interpretation of the scope of exclusion 3 (h) is plausible, but argues that the exclusion applies only to discriminatory hiring practices. We recognize that if an exclusion clause is ambiguous, it must be construed against the drafter. Imperial Casualty & Indemnity Co. v. State, supra, 246 Conn. 325. “The fact that the parties advocate different meanings of [an] exclusion clause [however] does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Kelly v. Figueiredo, supra, 223 Conn. 37. In our view, the terms of exclusion 3 (h) are clear and unambiguous and, therefore, leave no room for construction. The exclusion explicitly precludes coverage for personal injuries that arise out of sex discrimination during employment, as well as personal injuries that arise out of sex discrimination during hiring.

The underlying complaints alleged that the claimants were subjected to discrimination during their employment at the shop. Specifically, the complaints alleged that the “action[s] [were] brought to remedy discrimination on the basis of sex in the terms, conditions and privileges of employment. . . .” The claims, therefore, were within policy exclusion 3 (h). Consequently, the plaintiffs umbrella policy did not provide coverage for the claims made in the underlying complaints.

The plaintiff also maintains that the underlying claims are within the purview of the bodily injury provisions of the umbrella policy. “Bodily injury” is defined in the umbrella policy as “bodily injury, shock, fright, mental injury, disability, mental anguish, humiliation, sickness or disease sustained by a person, including death resulting from any of these at any time.” Exclusion 3 (c) of the umbrella policy provides, however, that the policy does not apply to “ ‘[b]odily injury’ consisting of humiliation, mental injury or mental anguish directly or indirectly related to the employment of any person or persons by any insured.”

The underlying complaints alleged injuries consisting of “mental anxiety, distress of mind and humiliation.” The plaintiff concedes that exclusion 3 (c) explicitly precludes coverage for the claims of humiliation, but argues that the exclusion does not preclude coverage for the claims of mental anxiety or distress of mind. The plaintiff acknowledges that an ordinary reading of the term “mental injury” in exclusion 3 (c) would include mental anxiety and distress of mind. The plaintiff argues, however, that the use of the words “mental anguish” in the policy directly after the term “mental injury” indicates an intention to limit the meaning of “mental injury” to “mental anguish.”

In our view, however, the language of the policy exclusion unambiguously evidences an intent to exclude from policy coverage claims for humiliation, mental injury and mental anguish. If the term “mental anguish” had been intended to explain, rather than supplement, the term “mental injury,” the policy would have stated “humiliation or mental injury, i.e., mental anguish.” The claims stated in the underlying complaints for mental anxiety and distress of mind clearly are claims based upon “mental injury.” Consequently, those claims are within the penumbra of exclusion 3 (c). Therefore, the plaintiffs umbrella policy did not provide coverage for the underlying claims and, consequently, the defendants had no duty to defend the plaintiff under the umbrella policy.

The judgment is affirmed.

In this opinion BORDEN, NORCOTT and MCDONALD, Js., concurred.

BERDON, J.,

dissenting. Although I disagree with much of the majority opinion, I will limit my discussion to the majority’s rejection of the plaintiffs claim that one of the defendant insurers was obligated to defend under a policy covering personal injuries “arising out of . . . [ojral . . . publication of material that slanders ... a person . . . [or] [o]ra! . . . publication of material that violates a person’s right of privacy.” The majority claims that that defendant had no duty to defend because the underlying complaints brought against the plaintiff did not properly allege publication of the relevant statements. This is simply wrong.

The majority acknowledges, as it must, that “[t]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether [s]he has, in [her] complaint, stated facts which bring the injury within the coverage.” (Emphasis added; internal quotation marks omitted.) Instead, it is the possibility of ultimate coverage that triggers the duty to defend. See West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990) (“[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured” [emphasis in original; internal quotation marks omitted]); West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986) (same); Schwartz v. Stevenson, 37 Conn. App. 581, 585, 657 A.2d 244 (1995) (same); see also Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 753 (2d Cir. 1949) (“[w]hen ... the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it” [emphasis added]); Schurgast v. Schumann, 156 Conn. 471, 489, 242 A.2d 695 (1968) (“whether [insurer] had a duty to defend the . . . action . . . depends on whether the complaint in that action stated facts which appear to bring . . . claim of damage within the policy coverage” [emphasis added]); Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967) (same).

It is therefore of no moment that neither of the underlying complaints brought against the plaintiff by two of its former employees expressly alleged the element of publication; a very high probability of publication is implicit in both pleadings. According to each of the underlying complaints, the “obscene, lewd and lascivious remarks [and] requests” were sufficiently “frequent” and “repeated” that they “createfd] a sexually harassing workplace.” At a bare minimum, it is possible that at least some of these remarks and requests were made in the presence of third parties — either fellow employees or patrons of the shop where the statements were made. As Judge Learned Hand put it (in an opinion from which we have recently quoted with approval), “we should resolve the doubt in favor of the insured.” Lee v. Aetna Casualty & Surety Co., supra, 178 F.2d 752.

In my view, the majority’s procrustean reading of the underlying complaints allows the defendant insurer to escape its contractual obligation to defend.

Accordingly, I dissent.

       We refer herein to Aetna Casualty and Surety Company of Illinois, Farmington Casualty Company and Aetna Casualty and Surety Company collectively as the defendants. All three defendants are related companies.

       The two complain! s alleged virtually identical claims. Count one of Helen Ritch’s complaint alleged in relevant part:
      “9. Between June 1992 and October 26, 1993, Sherif Mohamed, made frequent obscene, lewd and lascivious remarks, requests and gestures to Helen Ritch, and sexually assaulted her.
      “10. The nature and frequency of those remarks, requests and gestures were such to create a sexually harassing workplace.
      “11. [Springdale] . . . failed to supervise Sherif Mohamed or otherwise intervene to prevent him from engaging in sexually harassing conduct when they knew or, in the exercise of reasonable care, should have known of his conduct.
      “12. As a result of the sexual harassment in her workplace, the plaintiff has suffered and will in the future continue to suffer mental anxiety, distress of mind and humiliation.”
      Count two of Helen Ritch’s complaint incorpora!,ed the allegations contained in count one and asserted that the plaintiff had been negligent in retaining Mohamed when it knew or should have known of his conduct.
      Count three of Helen Ritch’s complaint asserted a claim for intentional infliction of emotional distress against Mohamed. Neither party argues that the plaintiff’s insurance policies provide coverage for that claim.
      Tina Ritch’s complaint presented claims identical to those contained in Helen Ritch’s complaint. The only significant difference related to the dates of her employment.

       The claimants’ complaints involve two policy years, 1992 and 1993. The insurance policies for each of the policy years are essentially identical and, therefore, no distinction between the policy years is necessary.

         In February, 1996, while the claimants’ lawsuits were pending, the plaintiff settled both actions. The plaintiff settled with Helen Ritch for $13,000, and with Tina Ritch for $4500.

       On appeal, the plaintiff pursues only its claims pertaining to the defendants’ contractual duty to defend, and not its claims of violation of the covenant of good faith and waiver.

       We address only part one of the workers’ compensation policy. The plaintiff did not pursue a claim under the employer’s liability coverage Opart two) in the trial court, and in its trial court brief the plaintiff stated that it “makes no claim under Part Two.”

       The plaintiff also argues that the trial court improperly considered the defendants’ claim that the workers’ compensation policy covered only claims for benefits filed under the workers’ compensation act. The plaintiff contends that, pursuant to Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806 (1994), the defendants were required to raise this issue as a special defense. We do not agree. In Bennett, we discussed the general prohibition of General Statutes § 38a-336 against recovery in excess of the limits of the uninsured motorist coverage provided by an insured’s policy. Id., 800-801. We stated that an insurer should raise issues of a policy’s limitation of liability by special defense. Id., 806. The present case, however, does not involve issues of limitation of liability, but rather involves a claim of noncoverage of insurance — a matter of policy interpretation.

       The plaintiff makes a claim for coverage only under coverage B, “Personal Injury and Advertising Injury Liability,” and not under coverage A, “Bodily Injury and Property Damage Liability.”

       Both parties agree that the trial court improperly determined that there was no coverage under the umbrella policy because there was no coverage under either the workers’ compensation policy or the commercial general liability policy. The defendants argue, however, that the trial court properly concluded that there was no coverage under the umbrella policy because policy exclusions explicitly precluded coverage. Thus, we address only whether the umbrella policy exclusions preclude coverage for the underlying claims.

       “The umbrella policy also includes within the definition of personal injury: “Oral . . . publication of material that slanders ... a person . . . [or] [o]ral . . . publication of material that violates a person’s right of privacy . . . .” For the reasons stated in part II of this opinion, we find no coverage for those personal injuries.

       See 9 G. Couch, Insurance (3d Ed. Rev. 1997) § 127:17, pp. 127-42 through 127-43 (“[e]mployment-based discrimination claims may also be placed outside of coverage by policy provisions specifically excluding claims ‘arising out of employment or prospective employment of any person by any insured’ ”).

       The plaintiff also argues in its reply brief that the claimants’ underlying complaints allege a sexual assault claim against their coworker, Mohamed, and that those allegations are sufficient to provide coverage under the bodily ipjury provisions of the umbrella policy. The plaintiff stated in its trial court brief: “It should be noted that the [claimants] claimed sexual assaults by a co-worker — not by [the plaintiff] or its officers or directors.” Section II of the umbrella policy, entitled “WHO IS AN INSURED,” provides, however, that “[njoperson is an insured as respects ‘bodily injury’to afellow employee unless insurance for such liability is afforded by the ‘underlying insurance.’ ” (Emphasis added.) Because there is no claim that liability for the sexual assault by Mohamed against a fellow employee is afforded coverage by any underlying insurance, there is no coverage for this claim under the umbrella policy.

         Flint v. Universal Machine Co., 238 Conn. 637, 647, 679 A.2d 929 (1996).


source: Caselaw Access Project

license: Public Domain

text:
    KENNETH C. SLOAN ET AL. v. MATTHEW F. KUBITSKY ET AL.
    The Supreme Court docket number is SC 15999.

      Lars Edeen, Jr., in support of the petition.

      Frank R. Grundman and John H. Hanks, in opposition.
    Decided September 15, 1998
   The petition by Edward J. Winter, Jr,, for certification for appeal from the Appellate Court, 48 Conn. App. 835 (AC 16471), is granted, limited to the following issue:

“Whether the Appellate Court properly affirmed the trial court’s decision precluding the guarantor from asserting the defense of recoupment?”


text:
    STATE OF CONNECTICUT v. HENRY CARTER

      Neal Cone, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 48 Conn. App. 755 (AC 16682), is denied.


text:
    DAVID FISHBEIN v. COMMISSIONER OF MOTOR VEHICLES
   The plaintiffs petition for certification for appeal from the Appellate Court, 48 Conn. App. 552 (AC 16719), is granted, limited to the following issue:

The Supreme Court docket number is SC 15996.

Jeffrey D. Brownstein, in support of the petition.

Robert L. Marconi, assistant attorney general, in opposition.

Decided September 15, 1998

“Did the Appellate Court properly conclude that the police had reasonable and articulable suspicion to justify stopping the plaintiffs vehicle?”


text:
    LUBA N. HILL v. JAMES T. HILL

      Luba N. Hill, pro se, in support of the petition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 48 Conn. App. 916 (AC 16808), is denied.


text:
    B AND D ASSOCIATES ET AL. v. BOARD OF EXAMINERS FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS

      Richard E. Blodgett, Jr., pro se, in support of the petition.

      William H. Douglass, pro se, in opposition.
    Decided September 15, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 48 Conn. App. 914 (AC 17484), is denied.


text:
    KAREN A. GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD

      William C. Franklin, in support of the petition.

      Kenneth R. Slater, Jr., and Gail E. McTaggart, in opposition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 95 (AC 14698), is denied.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. KENNETH HENRY

      Richard L. Grant, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 41 (AC 15876), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. NOEL MENDOZA

      Michael L. Moskowitz, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 323 (AC 15791), is denied.

Lisa Herskowitz, assistant state’s attorney, in opposition.

Decided September 15, 1998


text:
    STATE OF CONNECTICUT v. WILLIAM MORRIS

      Donald Dakers, special public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 409 (AC 16144), is denied.


text:
    THOMAS F. BROWN v. WILLIAM VILLANO ET AL., COCONSERVATORS (ESTATE OF RUTH VILLANO)

      Thomas F. Brown, in support of the petition.

      Charles D. Ray, in opposition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 365 (AC 16199), is denied.


text:
    SAYBROOK POINT MARINA PARTNERSHIP v. TOWN OF OLD SAYBROOK ET AL.
   The named defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 106 (AC 16251), is denied.

Jeremiah Donovan, in support of the petition.

Deborah J. Blood, in opposition.

Decided September 15, 1998


text:
    WELLINGTON SYSTEMS, INC., ET AL. v. REDDING GROUP, INC., ET AL.

      David S. Maclay, in support of the petition.
    Decided September 15, 1998
   The defendants’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 152 (AC 16334), is denied.


text:
    YEONG GIL KIM ET AL. v. DOMINICK MAGNOTTA ET AL.
    The Supreme Court docket number is SC 15995.

      Edward T. Krumeich, in support of the petition.
    Decided September 15, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 203 (AC 16509), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly affirm the judgment of the trial court that it lacked jurisdiction to order rescission of the stipulated agreement between the parties?”

BERDON and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. LEONARD JACKSON

      Laila M. Ghabrial, special public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 901 (AC 16598), is denied.


text:
    HELENA FITZGERALD v. JAMES T. FLAHERTY ET AL.

      Jacek I. Smigelski, in support of the petition.

      Jeffrey L. Ment, in opposition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 901 (AC 16691), is denied.


text:
    IRVING LASSITER v. JAMES MARSHALL ET AL.

      Max F. Brunswick, in support of the petition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 105 (AC 16740), is denied.


text:
    VINCENT J. DOWLING, SR., ET AL. v. FINLEY ASSOCIATES, INC., ET AL.
    The Supreme Court docket number is SC 15998.

      Richard P. Weinstein and Nathan A. Schatz, in support of the petition.

      R. Bartley Halloran, in opposition.
    Decided September 15, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 330 (AC 16843/ 16844), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that, with respect to the plaintiffs’ 1995 indemnification action, the prior general verdict barred the action because of the doctrine of collateral estoppel?”

PALMER, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. KEITH MURRAY

      Anthony F. DiPentima, in support of the petition.

      LeonF. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 905 (AC 16916), is denied.


text:
    SALVATORE CARACOGLIA v. BOARD OF EDUCATION OF THE TOWN OF MIDDLETOWN
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 903 (AC 17100), is denied.

Salvatore Caracoglia, pro se, in support of the petition.

Decided September 15, 1998


text:
    JUDITH DOBUZINSKY ET AL. v. MIDDLESEX MUTUAL ASSURANCE COMPANY

      Barbara L. Cox and William F. Gallagher, in support of the petition.

      William F. Tieman, Jr., in opposition.
    Decided September 15, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 398 (AC 17278), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs’ petition for certification to appeal.

MACDONALD., J., did not participate in the consideration or decision of this petition.


author: BERDON, J.

text:
    CONNECTICUT HOUSING FINANCE AUTHORITY v. JOHN FITCH COURT ASSOCIATES LIMITED PARTNERSHIP ET AL.

      Mark S. Baldwin and Kara J. Lane, in support of the petition.
   The defendants’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 142 (AC 17299), is denied.

BERDON, J.

dissenting. I would grant the defendants’ petition for certification to appeal.

James J. Tancredi, in opposition.

Decided September 15, 1998


text:
    HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.
    The Supreme Court docket number is SC 15994.

      Jacek I. Smigelski, in support of the petition.

      Richard S. Bartlett, in opposition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 1 (AC 17337), is granted, limited to the following issue:

“Did the Appellate Court properly affirm the decision of the compensation review board that it lacked subject matter jurisdiction over the plaintiffs appeal because it was untimely, pursuant to General Statutes § 31-301 (a)?”


text:
    THOMAS BUSH v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The petitioner Thomas Bush’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 902 (AC 17358), is denied.


text:
    STATE OF CONNECTICUT v. LUIS OTERO

      Lauren Weisfeld, assistant-public defender, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 459 (AC 17381), is denied.


text:
    BARBARA Z. WICHMAN v. KENNETH L. WICHMAN

      Helen M. Kemp, in support of the petition.

      Suzanne E. Caron, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 529 (AC 17433), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    MICHAEL MEADOWS v. HARRISON S. HIGGINS ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 286 (AC 17533), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the Home Improvement Act, General Statutes § 20-418 et seq., applied to the transaction between the plaintiff and the defendants?”

The Supreme Court docket number is SC 15997.

Jerome A. Mayer, in support of the petition.

William A. Phillips, in opposition.

Decided September 15, 1998


text:
    PAUL REEDER v. ZOHNE INDUSTRIES ET AL.

      Paul Reeder, pro se, in support of the petition.
    Decided September 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 904 (AC 18023), is denied.


text:
    BANK OF NEW HAVEN v. JOSEPH M. CALDRELLO II ET AL.

      Richard P. Weinstein, in support of the petition.

      Paul M. Gaide, in opposition.
    Decided September 15, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 17900) is dismissed.


text:
    HILLSHIRE HOUSE, INC., ET AL. v. M. KALFUS BUILDING AND DESIGN CORPORATION ET AL.

      Leslie S. Hollo, in support of the petition.
   The defendants’ petition on for certification for appeal from the Appellate Court (AC 18165) is denied.

Thomas E. Crosby, in opposition.

Decided September 15, 1998


text:
    UPTOWN FEDERAL SAVINGS AND LOAN v. ESTHER A. DEFINE ET AL.

      Edward F. Kunin, in support of the petition.
    Decided September 15, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 18216) is denied.


text:
    BARI LEVINE ET AL. v. STATE TEACHERS RETIREMENT BOARD ET AL.

      Richard L. Albrecht and Jocelyn B. Hurwitz, in support of the petition.

      Laurie Adler, assistant attorney general, in opposition.
    Decided September 15, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court (AC 18264) is denied.


text:
    STATE STREET MORTGAGE COMPANY v. BARBARA ROTH ET AL.

      Barbara Roth, pro se, in support of the petition.

      Matthew B. Woods, in opposition.
    Decided September 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court (AC 18273) is denied.


text:
    DONALD L. FRANCO v. PETER SANTINO ET AL.

      Kenneth A. Votre, in support of the petition.
    Decided September 15, 1998
   The plaintiffs for certification for appeal from the Appellate Court (AC 18298) is denied.


text:
    ROSEMARY YOUNG v. DOUGLAS YOUNG ET AL.
    The Supreme Court docket number is SC 16000.

      Gary A. Mastronardi, in support of the petition.
    Decided September 15, 1998
   The defendants’ petition for certification for appeal from the Appellate Court (AC 18387) is granted, limited to the following issues:

“1. Whether the defendants’ motion to reargue pursuant to Practice Book § 11-11 tolled the appeal period until the denial of that motion?

“2. Whether, under the circumstances surrounding this case, the defendants’ failure to post a bond within five days of the entry of judgment formed a proper basis for the dismissal of the defendants’ appeal?”


text:
    CONNECTICUT POST LIMITED PARTNERSHIP v. ROBERT LEVINE
   The defendant’s petition for certification for appeal from the Appellate Court (AC 18446) is dismissed.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.

Max F. Brunswick, in support of the petition.

Noble F. Allen, in opposition.

Decided September 15, 1998


text:
    STATE OF CONNECTICUT v. RICHARD E. PROVOST
    The Supreme Court docket number is SC 16012.

      Sheila A. Huddleston and James W. Bergenn, in support of the petition.

      Judith Rossi, senior assistant state’s attorney, in opposition.
    Decided September 29, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 56 (AC 15651) is granted, limited to the following issues:

“1. Did the trial court improperly preclude the cross-examination of a prosecution witness?

“2. Was the state’s attorney’s closing argument improper and is it reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989)?”


text:
    STATE OF CONNECTICUT v. DEREK SMITH

      Neal Cone, assistant public defender, in support of the petition.

      Michele Lukban, assistant state’s attorney, in opposition.
    Decided September 29, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 252 (AC 15728), is denied.


text:
    STATE OF CONNECTICUT v. DANTE BOND

      Glenn W. Falk, special public defender, in support of the petition.

      Linda N. Howe, assistant state’s attorney, in opposition.
    Decided September 29, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 183 (AC 16306), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal on the following issues:

“ 1. Did the Appellate Court properly conclude that the trial court’s comment about the existence of a criminal conspiracy, made during its jury instruction on accomplice testimony, only implicated general principles of credibility and, therefore, did not merit review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989)?

“2. If review is warranted, did the trial court’s comment deprive the defendant of a fair trial?”


text:
    IN RE JESSICA M

       Appeal dismissed. See In re Jessica M., 250 Conn. 747, 738 A.2d 1087 (1999).

   The petition by the commissioner of children and families for certification for appeal from the Appellate Court, 49 Conn. App. 229 (AC 16478) is granted, limited to the following issue:

“Did the Appellate Court properly affirm the trial court’s judgment that the respondents’ parental rights could not be terminated on the grounds of: (1) failure to rehabilitate; or (2) acts of parental commission or omission?”

The Supreme Court docket number is SC 16013.

Susan T. Pearlman, assistant attorney general, in support of the petition.

David Brian Carr, in opposition.

Decided September 29, 1998


text:
    EUGENE RUSSELL v. COMMISSIONER OF CORRECTION

      James B. Streeto, special public defender, in support of the petition.
   The petitioner Eugene Russell’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 52 (AC 16711), is denied.

BERDON, J.,

dissenting. I would grant the petitioner’s petition for certification to appeal on the following issues:

“1. Did the habeas court abuse its discretion in denying the petitioner certification to appeal on the grounds of ineffective assistance of trial counsel as a result of a conflict of interest based upon a violation of the trial attorney’s duty of loyalty?

“2. If so, is the petitioner required to prove the second prong of Strickland — that is, as a result of the conflict of interest his defense was prejudiced — in order to be granted a new trial?“

LeonF. Dalbec, Jr., assistant state’s attorney, in opposition.

Decided September 29, 1998

        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

        Phillips v. Warden, 220 Conn. 112, 132-33, 595 A.2d 1356 (1991) (“[w]here . . . the defendant claims that his counsel was ‘burdened by an actual conflict of interest’ ... the defendant need not establish actual prejudice” [citation omitted]).


text:
    STATE OF CONNECTICUT v. FRANCISCO TAVERAS

      David M. Shein, in support of the petition.

      Eileen McCarthy Geel, deputy assistant state’s attorney, in opposition.
    Decided September 29, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 639 (AC 16729), is denied.


text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY v. JUDITH PEREZ-HENDERSON

      Robert G. Oliver, in support of the petition.

      Mark R. Soboslai, in opposition.
    Decided September 29, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 653 (AC 16965), is denied.


text:
    GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF TRUMBULL GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. PEOPLE’S BANK GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF SHELTON ET AL. GOLDEN HILL PAUGUSSETT TRIBE OF INDIANS v. TOWN OF SEYMOUR

      Michael D. O’Connell, in support of the petition.

      Susan Quinn Cobb, assistant attorney general, in opposition.
    Decided September 29, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 711 (AC 17243/ 17244/17245/17246), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

NORCOTT and MCDONALD, Js., did not participate in the consideration or decision of this petition.


text:
    FREDERICK PAYNE, SR. v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, special public defender, in support of the petition.
   The petitioner Frederick Payne, Sr.’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 561 (AC 17354), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.

Toni M. Smith-Rosario, deputy assistant state’s attorney, in opposition.

Decided September 29, 1998


text:
    RICHARD GILLIS v. WHITE OAK CORPORATION ET AL.

      Scott Wilson Williams, in support of the petition.

      Ross T. Lessack, in opposition.
    Decided September 29, 1998
   The defendants’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 630 (AC 17446), is denied.


text:
    IN RE MICHAEL R.

      David B. Rozwaski, in support of the petition.

      Mary-Anne Ziewacz Mulholland, assistant attorney general, in opposition.
    Decided September 29, 1998
   The respondent Leroy R.’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 510 (AC 17630), is denied.


text:
    LISA PRICE-CROWLEY v. MICHAEL KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 481 (AC 17258), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

Jeffrey D. Brownstein, in support of the petition.

Priscilla J. Greene, assistant attorney general, in opposition.

Decided October 8, 1998

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    CITY OF HARTFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 760

      James C. Ferguson, in support of the petition.

      Karen K Buffkin, in opposition.
    Decided October 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 805 (AC 17338), is denied.


text:
    BLUE CROSS/BLUE SHIELD OF CONNECTICUT, INC. v. WALTER S. GURSKI, JR.

      Julie A. Manning, in support of the petition.
    Decided October 8, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 49 Conn. App. 731 (AC 17560), is denied.


text:
    EUGENE MERCER v. COMMISSIONER OF CORRECTION
   The petitioner Eugene Mercer’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 819 (AC 17663), is denied.

J. L. Pottenger, Jr., in support of the petition.

Jo Anne Sulik, assistant state’s attorney, in opposition.

Decided October 8, 1998

CALLAHAN, C. J., and NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    SUSAN ISSLER v. JAMES ISSLER
    The Supreme Court docket number is SC 16017.

      Steven D. Ecker, Howard A. Jacobs and Shirley V. Hoogstra, in support of the petition.

      Kathleen A. Hogan, in opposition.
    Decided October 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 58 (AC 16463), is granted, limited to the following issue:

“Did the Appellate Court properly affirm the trial court’s judgment of contempt of court?”

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. BRUNO TETI

      Kenneth J. Bartschi and Wesley W. Horton, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 34 (AC 17090), is denied.

Lisa Herskowitz, assistant state’s attorney, in opposition.

Decided October 8, 1998


text:
    STATE OF CONNECTICUT v. JORGE SANCHEZ

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided October 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 145 (AC 17336), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    LOUIS J. MATTEGAT ET AL. v. JOHN KLOPFENSTEIN ET AL.

      Michael S. McKenna, in support of the petition.

      Eric N. Wellman, in opposition.
    Decided October 8, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 50 Conn. App. 97 (AC 17482), is denied.


text:
    STATE OF CONNECTICUT v. CRAIG HOTH
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 77 (AC 17615), is denied.

Elizabeth M. Inkster, assistant public defender, in support of the petition.

Paul J. Ferencek, assistant state’s attorney, in opposition.

Decided October 8, 1998


text:
    STATE OF CONNECTICUT v. DARRELL JOHNSON

      Christopher T. Godialis, assistant state’s attorney, in support of the petition.

      Mark J. Welsh, assistant public defender, in opposition.
    Decided October 8, 1998
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 50 Conn. App. 46 (AC 17858), is denied.


text:
    MAX F. BRUNSWICK v. SAFECO INSURANCE COMPANY

      Peter B. Reilly, in support of the petition.

      Roger J. Frechette, in opposition.
    Decided October 22, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 48 Conn. App. 699 (AC 17001), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

MCDONALD, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. LUIS CABALLERO

      Tara L. Knight, special public defender, in support of the petition.

      Ellen A. Jawitz, deputy assistant state’s attorney, in opposition.
    Decided October 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 486 (AC 16007), is denied.


text:
    STATE OF CONNECTICUT v. ANTONIO RIGUAL
    The Supreme Court docket number is SC 16026.

      G. Douglas Nash, public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided October 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 420 (AC 16019), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court had not improperly denied the defendant’s request to provide a race-neutral explanation for its peremptory challenge of a venireperson of Portuguese descent?”

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. HARRY RODRIGUEZ

      Neal Cone, assistant public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided October 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 606 (AC 16218), is denied.


text:
    DREW FRIEDMAN v. MILLPIT CORPORATION ET AL.

      Richard J. Shapiro, in support of the petition.

      Hale C. Sargent, in opposition.
    Decided October 22, 1998
   The defendants’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 354 (AC 16753), is denied.


text:
    STATE OF CONNECTICUT v. EDWARD KRUELSKI, JR.
    The Supreme Court docket number is SC 16029.
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 553 (AC 16967), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the defendant’s prosecution was not barred by the double jeopardy clause of the federal constitution?”

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.

G. Douglas Nash, public defender, in support of the petition.

Robert L. Marconi, assistant attorney general, in opposition.

Decided October 22, 1998


text:
    SKW REAL ESTATE LIMITED PARTNERSHIP v. ANTHONY H. GALLICCHIO ET AL.

      Richard P. Weinstein and Nathan A. Schatz, in support of the petition.

      Mark S. Baldwin and Kara J. Lane, in opposition.
    Decided October 22, 1998
   The defendants’ petition for certification for appeal from the Appellate Court, 49 Conn. App. 563 (AC 17134), is denied.


text:
    STATE OF CONNECTICUT v. NISSA APONTE
    The Supreme Court docket number is SC 16028.

      Lori Welch-Rubin, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 114 (AC 15002), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the actions of the prosecutor did not result in a denial of due process?

“2. Did the Appellate Court properly conclude that the trial court did not abuse its discretion in admitting the victim’s testimony?”

Michele C. Lukban, assistant state’s attorney, in opposition.

Decided October 22, 1998


text:
    STATE OF CONNECTICUT v. ANDREW ALEXANDER
    The Supreme Court docket number is SC 16031.

      James M. Ralls, assistant state’s attorney, in support of the petition.

      Monte P. Radler, assistant public defender, in opposition.
    Decided October 22, 1998
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 50 Conn. App. 242 (AC 15584), is granted, limited to the following issues:

“1. Whether, under the circumstances of this case, the state violated the defendant’s constitutional right to be present at trial?

“2. Whether the state’s remarks to the jury amounted to prosecutorial misconduct?”

CALLAHAN, C. J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. BUCKLEY OTTO
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 1 (AC 16180), is denied.

PALMER, J., did not participate in the consideration or decision of this petition.

Neal Cone, assistant public defender, in support of the petition.

MichaelE. O’Hare, assistant state’s attorney, in opposition.

Decided October 22, 1998


text:
    STATE OF CONNECTICUT v. JOEL TUCKER
    The Supreme Court docket number is SC 16032.

      James A. Shanley, Jr., special public defender, in support of the petition.

      Steven J. Sedensky III, assistant state’s attorney, in opposition.
    Decided October 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 506 (AC 16427), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that General Statutes (Rev. to 1995) § 53-21 was not unconstitutionally vague as applied to the defendant’s conduct?”


text:
    STATE OF CONNECTICUT v. FREDDIE COX, JR.
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 175 (AC 16933), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that there was a sufficient evidentiary basis for the trial court’s instruction on flight or consciousness of guilt?

“2. If the answer to the first question is no, was the error harmful?”

The Supreme Court docket number is SC 16027.

Tara L. Knight, in support of the petition.

Richard F. Jacobson, assistant state’s attorney, in opposition.

Decided October 22, 1998


text:
    ELIZABETH K. HIRSCHFELD, EXECUTRIX (ESTATE OF ALVIN J. HIRSCHFELD) v. T. DONALD HIRSCHFELD

      Linda S. Morkan, Frank F. Coulom, Jr., and Bradford S. Babbitt, in support of the petition.

      Richard P. Weinstein and Nathan A. Schatz, in opposition.
    Decided October 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 280 (AC 17144), is denied.


author: BERDON, J., MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. RONALD VUMBACK
   The defendant’s petition for certification for appeal from the Appellate Court (18228) is denied.

BERDON, J.,

dissenting. By denying certification in this case, the majority of this court summarily strips the defendant of his choice of counsel without affording him an opportunity to be heard before the court on the merits of the disqualification.

The defendant, Ronald Vumback, was charged with several counts of sexual assault and risk of injury to a child. On February 27,1998, the state moved to disqualify his attorney, Norman A. Pattis, citing a purported conflict of interest. The trial court, Fracasse, J., granted the motion on March 2, 1998, and the defendant filed a timely appeal. The state filed a motion to dismiss the appeal, which the Appellate Court granted on June 17, 1998, without the benefit of a written opinion, concluding that it lacked jurisdiction because the dismissal did not constitute a final judgment.

In State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 (1984), overruled in part, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 552 A.2d 812 (1987), we explained that “[t]he granting of a motion to disqualify an attorney is ... an appealable final judgment.” An en banc panel of the Second Circuit Court of Appeals has provided a compelling discussion of the grave policy considerations underlying this conclusion. “[T]he losing party is immediately separated from counsel of his choice. If the order is erroneous, correcting it by an appeal at the end of the case might well require a party to show that he lost the case because he was improperly forced to change counsel. This would appear to be an almost insurmountable burden. In addition, permitting an immediate appeal from the grant of a disqualification motion does not disrupt the litigation, since the trial must be stayed in any case while new counsel is obtained. . . . [Moreover, it is very unlikely] that appeals from orders granting disqualification motions will be taken purely for tactical reasons.” (Emphasis added.) Armstrong v. McAlpin, 625 F.2d 433, 440-41 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106, 101 S. Ct. 911, 66 L. Ed. 2d 835 (1981). Although Armstrong has since been overruled by Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984), I find the reasoning of Armstrong overwhelming. Accordingly, under state law, I would hold that disqualification of defense counsel in a criminal trial is appealable — either as a final judgment or under the second exception to the final judgment rule articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (“where the order or action so concludes the rights of the parties that further proceedings cannot affect them”).

Rapuano was a criminal case, but we did not limit our explanation to the criminal context. Instead, our general language encompassed both civil and criminal cases. Three years after Rapuano, in Burger & Burger, Inc. v. Murren, supra, 202 Conn. 669, the court parted company with the Second Circuit by determining that the disqualification of an attorney in a civil case does not constitute a final judgment. Accordingly, the court held that, “[t]o the extent that State v. Rapuano . . . [is] inconsistent with this conclusion, [it is] overruled.” (Citation omitted; emphasis added.) Id., 670. The court in Burger & Burger, Inc., however, carefully limited its language to the civil context. Significantly, the court did not address the criminal aspect of Rapuano. The court thus tacitly retained that portion of Rapuano that addresses disqualification of attorneys representing criminal defendants. The present petition for certification asks us to expressly rule upon the significance of the careful limitations employed throughout Burger & Burger, Inc. By declining to do so, the majority implicitly explodes the scope of that case without the benefit of a reasoned discussion. In my view, this stratagem threatens the fundamental right of an accused to counsel of his choice.

In Burger & Burger, Inc. v. Murren, supra, 202 Conn. 663, the court justified the rule announced to govern civil litigation by invoking the policy goal of efficiency. It is apparent to me that the preeminence of this policy dissolves in the criminal context. The court acknowledged in Burger & Burger, Inc., “the fact that the right to counsel of one’s choice, although not absolute, is a fundamental premise of our adversary system.” Id., 668. Today’s majority flagrantly disregards the significance of this fact for a criminal defendant. The right to counsel in a criminal prosecution is not only embodied in our state constitution; Conn. Const., art. I, § 8; it has also been richly embellished in the history of this state. “Not only was Connecticut ‘the first state to adopt the public defender system’; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel ‘was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)]. . . .’ Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” State v. Stoddard, 206 Conn. 157, 165, 537 A.2d 446 (1988).

It is imperative that a criminal defendant should have his or her choice of counsel unless there are compelling reasons to thwart this choice. In a criminal trial, the enormous coercive power of the state and the outrage of the community are both pitted against a lone individual. Defense counsel is often the only person who stands on the side of the accused. An almost sacred relationship exists between a criminal defendant and his lawyer, and it is for this reason that the state should not lightly wrench the two apart.

As the court recognized in Burger & Burger, Inc., “[a] court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Internal quotation marks omitted.) Burger & Burger, Inc. v. Murren, supra, 202 Conn. 662. By denying the present petition for certification, the majority implicitly overrules the criminal aspect of Rapuano, yet it has advanced neither reason nor logic for its decision to do so.

Accordingly, I dissent.

Norman A. Pattis, in support of petition.

Toni Smith-Rosario, deputy assistant state’s attorney, in opposition.

Decided October 22, 1998

MCDONALD, J.,

dissenting. I would grant the petition to review directly the issue of whether the disqualification of defense counsel in a criminal case is appealable before the trial; see State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 (1984); as I view the question unanswered by Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987).

       The state claimed that Pattis’ law firm, Williams, Polan and Pattis, LLC, represented a police officer who was expected to testify for the state in this case.

       In the first line of Burger & Burger, Inc., the court stated that “[t]he dispositive issue on this appeal is whether the granting of a motion to disqualify counsel in a civil case is an appealable final judgment.” (Emphasis added.) Burger & Burger, Inc. v. Murren, supra, 202 Conn. 661. Later in the opinion, the court observed that federal decisions rendered subsequent to Rapuano “c,onclud[ed] that disqualification orders in civil cases are not appealable final judgments.” (Emphasis added.) Id., 663. Furthermore, the court expressly recognized the “myriad variables present in civil litigation [that] concededly would impose a difficult burden on a losing litigant” seeking to demonstrate that he had been aggrieved by the disqualification of counsel. (Emphasis added; internal quotation marks omitted.) Id., 668. Finally, in the course of one short paragraph concluding that an order disqualifying counsel is an interlocutory order, as opposed to a final judgment, the court twice took pains to emphasize that its discussion was limited to the civil context. Id., 664.
      It is, of course, of no moment that the United States Supreme Court determined in Flanagan v. United States, supra, 465 U.S. 259, that, under federal law, disqualification orders in criminal cases are not appealable final orders. As I have indicated, I find the reasoning of Armstrong overwhelming, particularly in the criminal context. I believe that we should adopt it as a matter of state law. The fleeting reference to Flanagan in Burger & Burger,

        Inc., is not even dicta on this question of state law, let alone an authoritative pronouncement of this court. See Burger & Burger, Inc. v. Murren, supra, 202 Conn. 663. (“[A] recent decision of the United States Supreme court in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985), has, however, resolved this question on the federal level by concluding that disqualification orders in civil cases are not appealable final judgments. Cf. Flanagan v. United States, [supra, 259] (disqualification orders in criminal cases are not appealable final judgments).” (Emphasis added.) Id. Just as the Burger & Burger, Inc., court conducted a thorough analysis of appealability in the civil context, notwithstanding the unambiguous holding of Richardson-MerreU, Inc., it is equally important to conduct a thorough analysis of appealability in the criminal context, notwithstanding Flanagan.

       “The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” Burger & Burger, Inc. v. Murren, supra, 202 Conn. 663; see id., 668.


text:
    JOHN KUCEJ v. ZONING COMMISSION OF THE TOWN OF STRATFORD

      Wendi D. Kowarik, in support of the petition.
    Decided October 22, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court is dismissed.


text:
    STATE OF CONNECTICUT v. JOHNNY JOE MARTINEZ

      John E. Doran, special public defender, in support of the petition.

      Peter A. McShane, assistant state’s attorney, in opposition.
    Decided October 27, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 738 (AC 16941), is denied.


text:
    JOHN C. MANDANICI v. ZONING BOARD OF APPEALS OF THE CITY OF SHELTON

      Joseph R. Mirrione, in support of the petition.

      Ian A. Cole and Thomas J. Welch, in opposition.
    Decided October 27, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 308 (AC 17469/ 17475), is denied.


text:
    PAWLING SAVINGS BANK v. PATRICK J. BERKERY ET AL.

      Kenneth R. Davis, in support of the petition.

      Gerald Hecht, in opposition.
    Decided October 27, 1998
   The defendant’s petition for certification for appeal from the Appellate Court (AC 18292) is denied.


text:
    STATE OF CONNECTICUT v. BARRY THOMAS
    The Supreme Court docket number is SC 16040.
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 369 (AC 15740), is granted, limited to the following issue:

“Did the Appellate Court properly terminate its review of the defendant’s Batson claim after concluding that some of the state’s reasons for exercising its peremptory challenge against an African-American venireperson were legitimate?”

KATZ, J., did not participate in the consideration or decision of this petition.

Susan M. Hankins, assistant public defender, in support of the petition.

Ellen A. Jawitz, deputy assistant state’s attorney, in opposition.

Decided November 3, 1998


text:
    STATE OF CONNECTICUT v. JOHN RAYMOND PECZYNSKI

      John E. Doran, special public defender, in support of the petition.

      Robert J. Scheinblum, assistant state’s attorney, in opposition.
    Decided November 3, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 51 (AC 16641), is denied.


text:
    KEITH GALLANT, ADMINISTRATOR (ESTATE OF THELMA S. CAVALLARO) v. JOAN E. CAVALLARO ET AL.

      Joan E. Cavallaro, pro se, in support of the petition.
    Decided November 3, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 132 (AC 16867), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    BARBARA H. FRIEDMAN v. TOWN OF WESTPORT ET AL.

      Hale C. Sargent, in support of the petition.

      Patricia E. Curtin, in opposition.
    Decided November 3, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 209 (AC 17032), is denied.

BERDON, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. JAMES BAKER

      Alexander H. Schwartz, special public defender, in support of the petition.

      Ronald G. Weller, assistant state’s attorney, in opposition.
    Decided November 3, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 268 (AC 17227), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. DONALD COLE
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 312 (AC 17617), is granted, limited to the following issue:

The Supreme Court docket number is SC 16039.

Neal Cone, assistant public defender, in support of the petition.

Mitchell S. Brody, assistant state’s attorney, in opposition.

Decided November 3, 1998

“Was the Appellate Court correct in concluding that the trial court’s failure to define the term ‘wrongfulness’ under General Statutes § 53a-13 (a) was not improper?”

BORDEN, J., did not participate in the consideration or decision of this petition.


text:
    MECHANICS SAVINGS BANK v. BILLY J. HENDRICKS ET AL.

      Norman J. Bernstein, in support of the petition.

      Michele D. Sensale, in opposition.
    Decided November 3, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 18435) is denied.


text:
    MACELLIS GLASS, EXECUTOR (ESTATE OF JUDITH W. GLASS) v. PETER MITCHELL CONSTRUCTION LEASING AND DEVELOPMENT CORPORATION

       The appeal was withdrawn July 6, 1999.

   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 539 (AC 16730), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that (1) the trial court abused its discretion in finding a unity of interest for purposes of voir dire pursuant to General Statutes § 51-241 and (2) was the defendant entitled to a new trial as a result of that abuse of discretion?”

The Supreme Court docket number is SC 16045.

Vincent M. Musto, in support of the petition.

Wesley W. Horton and Susan M. Cormier, in opposition.

Decided November 18, 1998


text:
    STATE OF CONNECTICUT v. ROBERT WATSON

      Lisa J. Steele, special public defender, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided November 18, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 591 (AC 16892), is denied.


text:
    JACQUELINE WRIGHT ET AL. v. PHILIP HUTT

      Steven D. Jacobs, in support of the petition.

      Christopher L. Jefford and Craig A. Fontaine, in opposition.
    Decided November 18, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 50 Conn. App. 439 (AC 17063), is denied.


text:
    ANNE C. BEERS v. WESTPORT BANK AND TRUST COMPANY

      Peter J. Ottomano, in support of the petition.

      Charles W. Fleischmann, in opposition.
    Decided November 18, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 671 (AC 17097), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    MICHAEL E. NAZARKO ET AL. v. CONSERVATION COMMISSION OF THE TOWN OF EAST LYME ET AL.

      Theodore A. Harris, in support of the petition.

      David F. Sherwood, in opposition.
    Decided November 18 1998
   The petition of the defendant Niantic Sportsmen’s Club, Inc., for certification for appeal from the Appellate Court, 50 Conn. App. 548 (AC 17164), is denied.


text:
    MICHAEL E. NAZARKO ET AL. v. CONSERVATION COMMISSION OF THE TOWN OF EAST LYME ET AL.
   The named defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 548 (AC 17164), is denied.

Edward B. O’Connell, in support of the petition.

David F. Sherwood, in opposition.

Decided November 18, 1998


text:
    MICHAEL E. NAZARKO ET AL. v. ZONING COMMISSION OF THE TOWN OF EAST LYME ET AL.

      Theodore A. Harris, in support of the petition.

      David F. Sherwood, in opposition.
    Decided November 18, 1998
   The petition of the defendant Niantic Sportsmen’s Club, Inc., for certification for appeal from the Appellate Court, 50 Conn. App. 517 (AC 17188), is denied.


text:
    MICHAEL E. NAZARKO ET AL. v. ZONING COMMISSION OF THE TOWN OF EAST LYME ET AL.

      Edward B. O’Connell, in support of the petition.

      David F. Sherwood, in opposition.
    Decided November 18, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 517 (AC 17188), is denied.


text:
    BERNARD O’SHEA v. JEFFREY MIGNONE
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 577 (AC 17348), is denied.

Wesley W. Horton and Susan M. Cormier, in support of the petition.

Mario DiNatale and Jonathan M. Levine, in opposition.

Decided November 18, 1998

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. THOMAS ROGERS

      Suzanne Zitser, assistant public defender, in support of the petition.

      Judith Rossi, senior assistant state’s attorney, in opposition.
    Decided November 18, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 467 (AC 17616), is denied.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    THOMAS J. JEFFREYS v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

      Thomas J. Jeffreys, pro se, in support of the petition.
    Decided November 18, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 18266) is denied.


text:
    LOUISE D. ROBINSON v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.

      Louise D. Robinson, pro se, in support of the petition.
    Decided November 18, 1998
   The plaintiffs petition for certification for appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOSE RODRIGUEZ

      M. Donald Cardwell, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided December 7, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 49 Conn. App. 699 (AC 17234), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    IRIS W. LORD v. PAUL H. MANSFIELD ET AL.

      Max F. Brunswick, in support of the petition.

      Frederick W. Krug, in opposition.
    Decided December 7, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 21 (AC 17122/ 18035), is denied.


text:
    TERRY BUSHY ET AL. v. GEORGE E. FORSTER ET AL.

      Max F. Brunswick, in support of the petition.
    Decided December 7, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 233 (AC 12729), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.


text:
    CAROLE BURNHAM v. KARL AND GELB, P.C., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 385 (AC 17022), is granted, limited to the following issues.

“1. Whether the Appellate Court erred in concluding that the plaintiffs attempted use of violations of the federal Occupational Safety and Health Act (act) to support a claim for wrongful termination failed as a matter of law because the existence of a statutory remedy under the act precluded the plaintiffs claim of wrongful discharge based on a violation of public policy?

“2. Whether the Appellate Court erred in concluding that an administrative remedy existed under the act?

“3. Whether the Appellate Court erred in concluding that no material fact in dispute existed as to whether the plaintiff exhausted her supposed administrative remedy with the Occupational Safety and Health Administration?

“4. Whether the Appellate Court erred in concluding that the plaintiff did not have a cause of action for wrongful discharge against her employer for refusing to work under conditions that pose a substantial risk of death, disease or physical harm and that are not contemplated within the scope of the plaintiffs duties?”

The Supreme Court docket number is SC 16050.

James S. Brewer, in support of the petition.

Nathan A. Schatz, in opposition.

Decided December 7, 1998

BORDEN, KATZ and PALMER, Js., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. KENNETH HENTON

      Lawrence S. Dressier, special public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided December 7, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 521 (AC 17824), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STEPHEN TIROZZI v. SHELBY INSURANCE COMPANY
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 680 (AC 17498), is denied.

NORCOTT, J., did not participate in the consideration or decision of this petition.

Dominic J. Caciopoli and Rocco J. Tirozzi, in support of the petition.

Patrick M. Mullins and William E. Murray, in opposition.

Decided December 7, 1998


text:
    AVON MEADOW CONDOMINIUM ASSOCIATION, INC., ET AL. v. BANK OF BOSTON CONNECTICUT

      Ann M. Siczewicz and Ben M. Krowicki, in support of the petition.

      Richard P. Weinstein and Nathan A. Schatz, in opposition.
    Decided December 7, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 688 (AC 17267), is denied.


text:
    AVON MEADOW CONDOMINIUM ASSOCIATION, INC., ET AL. v. BANK OF BOSTON CONNECTICUT

      Richard P. Weinstein and Nathan A. Schatz, in support of the cross petition.

      Ann M. Siczewicz and Ben M. Krowicki, in opposition.
    Decided December 7, 1998
   The plaintiffs cross petition for certification for appeal from the Appellate Court, 50 Conn. App. 688 (AC 17267), is denied.


text:
    STATE OF CONNECTICUT v. ANGEL OCASIO
    The Supreme Court docket number is 16049.

      Ronald G. Weller, assistant state’s attorney, in support of the petition.

      Neal Cone, assistant public defender, in opposition.
    Decided December 7, 1998
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 50 Conn. App. 748 (AC 16474), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that literal, rather than substantial, compliance is required in order for a defendant’s plea of guilty to be valid under Practice Book § 39-20?

“2. If the answer to the first question is no, was there substantial compliance with Practice Book § 39-20?”


text:
    JOSE ROSADO v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, special public defender, in support of the petition.

      Bruce R. Lockwood, deputy assistant state’s attorney, in opposition.
    Decided December 7, 1998
   The petitioner Jose Rosado’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 759 (AC 17285,) is denied.


text:
    DELORES D. STEWART v. LEROY STEWART

      Delores D. Stewart, pro se, in support of the petition.
    Decided December 7, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 762 (AC 16493), is denied.


text:
    DWIGHT RICHARD v. U.S. REPEATING ARMS COMPANY

      Dwight Richard, pro se , in support of the petition.

      Thomas A. Mulligan, Jr., in opposition.
    Decided December 7, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 18667) is denied.

BERDON and MCDONALD, Js., did not participate in the consideration or decision of this petition.


text:
    JOSEPH FALCO v. INSTITUTE OF LIVING
    The Supreme Court docket number is SC 16052.

      Donna R. Zito and Mark R. Kravitz, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 654 (AC 16979), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiff was entitled to a bill of discovery regarding ‘John Doe’s’ name, last known address and social security number?”

Doreen J. Bonadies, in opposition.

Decided December 21, 1998


text:
    MARVIN BEASLEY v. COMMISSIONER OF CORRECTION
   The petitioner Marvin Beasley’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 421 (AC 17295), is granted, limited to the following issues:

“1. Whether a department of correction administrative directive is an ex post facto law when applied to an inmate so as to make him ineligible to earn statutoiy good time reductions in his sentence that he had previously been eligible to earn under General Statutes § 18-7a (c)?

“2. Whether the respondent violated General Statutes § 18-7a (c) by denying the petitioner monthly good time credits from March 23, 1995, to August 8, 1996, without first holding a hearing to determine whether in each given month the petitioner had earned good time credits by good conduct and obedience to the mies established for the service of his sentence?

“3. Whether the respondent has the statutory authority to adopt and enforce an administrative mle that declares an inmate in administrative segregation categorically ineligible to earn statutory good time credits that would otherwise apply to the service of his sentence under General Statutes § 18-7a (c)?

“4. Whether the respondent denied the petitioner due process of law by holding him categorically ineligible to earn good time credits as long as he was kept in administrative segregation even though he failed to give the petitioner notice of the ineligibility mle before the ‘classification hearing’ that resulted in the petitioner’s placement in administrative segregation and the petitioner had previously been ordered to forfeit 320 days good time after a ‘disciplinary hearing’ concerned with the same misconduct that later served as the basis for his reclassification?”

The Supreme Court docket number is SC 16054.

Timothy H. Everett, in support of the petition.

Gregory T. D’Auria, assistant attorney general, in opposition.

Decided December 21, 1998


text:
    JOHN W. NARDUCCI, JR. v. COMMISSIONER OF CORRECTION
   The petitioner John W. Narducci, Jr.’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 421 (AC 17296), is granted, limited to the following issues:

“1. Whether a department of correction administrative directive is an ex post facto law when applied to an inmate so as to make him ineligible to earn statutory good time reductions in his sentence that he had previously been eligible to earn under General Statutes § 18-7a (c)?

“2. Whether the respondent violated General Statutes § 18-7a (c) by denying the petitioner monthly good time credits beginning in July, 1994, without first holding a hearing to determine whether in each given month the petitioner had earned good time credits by good conduct and obedience to the rules established for the service of his sentence?

The Supreme Court docket number is SC 16053.

Timothy H. Everett, in support of the petition.

Decided December 21, 1998

“3. Whether the respondent has the statutory authority to adopt and enforce an administrative rule that declares an inmate in administrative segregation categorically ineligible to earn statutory good time credits that would otherwise apply to the service of his sentence under General Statutes § 18-7a (c)?

“4. Whether the respondent has denied the petitioner due process of law by holding him categorically ineligible to earn good time credits as long as he remains in administrative segregation even though he was placed in administrative segregation following a classification hearing that took place before the respondent adopted the rule that now excludes inmates in administrative segregation from earning good time reductions?”


text:
    ALEXANDER CHURCHILL ET AL. v. EUNICE ALLESSIO, EXECUTRIX (ESTATE OF EVA CHURCHELOW), ET AL.

      Frederick E. Mascolo, in support of the petition.

      Gary P. Sklaver and Irving H. Perlmutter, in opposition.
    Decided December 21, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 51 Conn. App. 24 (AC 16646), is denied.


text:
    STANLEY FERBER, TRUSTEE OF THE VIRGINIA D’ADDARIO SPRAY TRUSTS v. TILCON CONNECTICUT, INC.

      Allan M. Cane, in support of the petition.
    Decided December 21, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 51 Conn. App. 20 (AC 17284), is denied.


text:
    STATE OF CONNECTICUT v. LUIS MARTINEZ

      Suzanne Zitser, assistant public defender, in support of the petition.

      Ronald G. Weller, assistant state’s attorney, in opposition.
    Decided December 21, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 59 (AC 18051), is denied.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    BERKELEY FEDERAL BANK AND TRUST FSB v. JEFFREY W. NAVIN ET AL.

      Kenneth R. Davis, in support of the petition.

      Anne R. Hoyt, in opposition.
    Decided December 21, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 18569) is denied.


text:
    STATE OF CONNECTICUT v. ERIC AMADO
    The Supreme Court docket number is SC 16058.

      Lauren Weisfeld, assistant public defender, in support of the petition.

      Susann E. Gill, assistant state’s attorney, in opposition.
    Decided January 4, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 607 (AC 15176), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the defense of self-defense does not apply to a charge of felony murder as a matter of law?”


text:
    STATE OF CONNECTICUT v. ERIC AMADO
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 50 Conn. App. 607 (AC 15176), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the defendant was entitled to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), on the trial court’s instructions regarding General Statutes § 53a-20, concerning the use of force in defense of premises?

“2. Did the Appellate Court properly conclude that the defendant was entitled to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), on the trial court’s instructions regarding the duty to retreat?

“3. If the answer to question one or two is yes, was either such improper instruction harmless in view of the affirmance of the defendant’s convictions of two counts of felony murder?”

The Supreme Court docket number is SC 16058.

Susann E. Gill, assistant state’s attorney, in support of the petition.

Lauren Weisfeld, assistant public defender, in opposition.

Decided January 4, 1999


text:
    STATE OF CONNECTICUT v. RONALD ALBERT
    The Supreme Court docket number is SC 16059.

      Suzanne Zitser, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided January 4, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 715 (AC 15490), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court correctly instructed the jury regarding the meaning of ‘sexual intercourse’ under the facts of this case?”

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


text:
    GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. POWERS, BOLLES, HOULIHAN AND HARTLINE, INC.
   The plaintiffs petition for certification for appeal from the Appellate Court, 50 Conn. App. 701 (AC 17345), is granted, limited to the following issue:

The Supreme Court docket number is SC 16060.

William F. Corrigan, in support of the petition.

Joseph T. Sweeney and Daniel P. Scapellati, in opposition.

Decided January 4, 1999

“Did the application for automobile insurance with liability limits higher than the uninsured-underinsured motorist limits constitute a written rejection of the right to uninsured-underinsured motorist coverage equal to the amount of liability coverage?”


text:
    ERIC J. YOUNGQUIST v. FREEDOM OF INFORMATION COMMISSION ET AL.

      Eric J. Youngquist, pro se, in support of the petition.
    Decided January 4, 1999
   The plaintiffs petition for certification for appeal from the Appellate Court, 51 Conn. App. 96 (AC 17540), is denied.


text:
    ROBERT SCHRECK v. CITY OF STAMFORD
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 92 (AC 17668), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that, under General Statutes § 31-301 (a), the time for a party to appeal to the compensation review board from a decision of a workers’ compensation commissioner does not begin until the commissioner sends notice of the decision to the party, rather than to the party’s counsel?”

The Supreme Court docket number is SC 16061.

Richard S. Bartlett, in support of the petition.

Joseph Lucian Gerardi, in opposition.

Decided January 4, 1999

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. JOHN TYLER FUESSENICH

      Hubert J. Santos and Hope C. Seeley, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided January 12, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 50 Conn. App. 187 (AC 16605), is denied.

BORDEN and PALMER, Js., did not participate in the consideration or decision of this petition.


text:
    BOBBY PETERSON v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, special public defender, in support of the petition.
   The petitioner Bobby Peterson’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 903 (AC 16970), is denied.

Eileen McCarthy Geel, deputy assistant state’s attorney, in opposition.

Decided January 12, 1999


text:
    STANLEY MLYNEK v. DANUTA MLYNEK

      Danuta Mlynek, pro se, in support of the petition.
    Decided January 12, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 902 (AC 18310), is denied.


text:
    SAYBROOK BANK AND TRUST COMPANY ET AL. v. JOHN T. O’REILLY ET AL.

      James T. O’Reilly, pro se, in support of the petition.
    Decided January 12, 1999
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 18554) is denied.


text:
    LOUIS ESPOSITO v. HARRISON INGRAM, JR.

      Mark S. Rosenblitt, in support of the petition.
    Decided January 12, 1999
   The defendant’s petition for certification for appeal from the Appellate Court (AC 18631) is denied.


text:
    STATE OF CONNECTICUT v. ANDRE COARDES
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 112 (AC 16491), is denied.

Lisa J. Steele, special public defender, in support of the petition.

Denise B. Smoker, assistant state’s attorney, in opposition.

Decided January 28, 1999

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. DARREN JONES

      David A. Golas and David A. Golas II, in support of the petition.

      John A. East III, assistant state’s attorney , in opposition.
    Decided January 28, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 126 (AC 17123), is denied.


text:
    STATE OF CONNECTICUT v. NATHANIEL MCDUFFIE

      Louis S. Avitabile, special public defender, in support of the petition.

      LeonF. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided January 28, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 210 (AC 17650), is denied.


text:
    BRENTWOOD EXTENSION v. THOMAS MIHALOV ET AL.

      Heidi Clark, in support of the petition.

      William J. Wenzel and Sheila A. Denton, in opposition.
    Decided January 28, 1999
   The petition of the defendant Murphy, Inc., for certification for appeal from the Appellate Court (AC 18531) is denied.


text:
    STATE OF CONNECTICUT v. ALEX KELLY

      Eliot B. Gersten and Linda Kenney, pro hac vice, in support of the petition.

      Christopher T. Godialis, assistant state’s attorney, in opposition.
    Decided January 28, 1999
   Amy Molitor’s petition for certification for appeal from the Appellate Court (AC 18578) is denied.

CALLAHAN, C. J., and BORDEN, J., did not participate in the consideration or decision of this petition.


text:
    THADDEUS TAYLOR v. RICHARD BROWN ET AL.

      Thaddeus Taylor, pro se, in support of the petition.
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 18630) is denied.

PALMER, J., did not participate in the consideration or decision of this petition.

Joel M. Fain and William E. Murray, in opposition.

Decided January 28, 1999


text:
    JAMES CANTONI v. XEROX CORPORATION ET AL.
    The Supreme Court docket number is SC 16067.

      Jennifer A. Hock, in support of the petition.
    Decided January 28, 1999
   The defendants’ petition for certification for appeal from the Appellate Court (AC 18686) is granted, limited to the following issue:

“Did the Appellate Court properly dismiss this appeal for lack of a final judgment?”


text:
    TOWN OF HAMDEN ET AL. v. LEE S. BRADY ET AL.

      Lee S. Brady, pro se, in support of the petition.
    Decided January 28, 1999
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 18724) is denied.


text:
    STATE OF CONNECTICUT v. PATRICK CHASSE

      Susan M. Hankins, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 345 (AC 17031), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.

Mitchell S. Brody, assistant state’s attorney, in opposition.

Decided February 4, 1999