source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    BRUCE ALLARD v. LIBERTY OIL EQUIPMENT COMPANY, INC.
    (SC 16154)
    Borden, Norcott, Katz, Sullivan and Vertefeuille, Js.

      Argued May 30
    officially released July 25, 2000

      John B. Farley, with whom, on the brief, were James V. Somers, Michael S. Taylor and Jodie R. Small, for the appellant (defendant).

      Michael Brodinsky, for the appellee (third party defendant).
   Opinion

BORDEN, J.

The sole issue in this appeal is whether a defendant sued in negligence may apportion liability to a product seller against whom the defendant alleges, in its apportionment complaint, only a theory of negligence. The defendant, Liberty Oil Equipment Company, Inc. (Liberty Oil), appeals from the judgment of the trial court striking its apportionment complaint against the third party defendant, Boston Steel and Manufacturing Co. (Boston Steel). Liberty Oil claims that the trial court improperly struck its apportionment complaint because, although Boston Steel was alleged to be a product seller with respect to the particular item in question in the case, Liberty Oil confined its apportionment allegations against Boston Steel to claims of negligence. We affirm the judgment of the trial court.

The plaintiff, Bruce Allard, brought the action underlying this case against Liberty Oil in negligence. Liberty Oil filed a substitute apportionment complaint against Boston Steel. The trial court granted Boston Steel’s motion to strike the substitute apportionment complaint, and rendered judgment accordingly.

The procedural history is undisputed. In June, 1996, Allard brought the underlying action in this case. In his original complaint, Allard alleged that, on February 27, 1995, while employed by Viking Oil, Inc., he brought his oil truck to Liberty Oil for servicing and, while in Liberty Oil’s service area, he was descending certain steps of a ladder on his truck when he fell, landing on a wooden hand truck, causing him to suffer severe injuries. Allard alleged that Liberty Oil was negligent in failing to maintain its service area in a safe condition, in failing to prohibit customers from entering the service area, and in failing to take reasonable measures to prevent customers from entering the dangerous service area. Liberty Oil filed its first apportionment complaint against Boston Steel alleging that a portion of its liability to Allard, if any, should be apportioned to Boston Steel because the oil truck or a portion of the oil truck from which Allard allegedly had fallen was “designed, installed, manufactured, distributed, or sold by” Boston Steel, and was defective and unreasonably dangerous. The trial court, Lavine, J., granted Boston Steel’s motion to strike this first apportionment complaint. Liberty Oil then filed a substitute apportionment complaint (apportionment complaint), which is the focus of this appeal.

In the apportionment complaint, Liberty Oil alleged that the portion of the oil truck from which Allard allegedly had fallen, including the tank and ladder, was “designed, manufactured, installed, distributed, or sold by” Boston Steel. Liberty Oil also alleged that Allard had alleged that his injuries were the result of Liberty Oil’s negligence, and that, if Allard had suffered any injuries, “then said injuries and damages were proximately caused by the negligence and carelessness of Boston Steel . . . .” Accordingly, Liberty Oil sought “an apportionment of liability against Boston Steel for the percentage of its liability causing the plaintiffs alleged injuries and damages.” Boston Steel moved to strike the apportionment complaint on the ground that, despite the allegations of negligence, the apportionment complaint “alleges a products liability claim, not a negligence claim.” The trial court, Lavine, J., granted the motion to strike. Subsequently, the trial court, Maloney, J., granted Liberty Oil’s motion for judgment on the apportionment complaint. This appeal followed.

Liberty Oil claims that the trial court improperly struck its apportionment complaint. Liberty Oil’s argument is simple and straightforward: it has been sued in negligence; General Statutes § 52-572h permits apportionment of negligence claims; its apportionment complaint seeks to apportion only its liability, if any, based on negligence; and, therefore, its apportionment complaint was proper. Despite this apparent simplicity and straightforwardness, however, we disagree. We conclude that the trial court properly struck the apportionment complaint.

It is undisputed that Liberty Oil filed its apportionment complaint pursuant to General Statutes § 52-102b (a), which provides in pertinent part: “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. . . .” Indeed, § 52-102b is “the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.” General Statutes § 52-102b (f).

It is also undisputed that, to the extent that Allard’s complaint seeks damages from Liberty Oil based on negligence, that complaint is a “civil action to which section 52-572h applies”; General Statutes § 52-102b (a); because of the provisions of § 52-572h (c): “In a negligence action to recover damages resulting from personal injuiy, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . . .” General Statutes § 52-572h (c), as amended by No. 99-69, § 1 (c), of the 1999 Public Acts (P.A. 99-69). Put another way, a “civil action to which section 52-572h applies,” within the meaning of § 52-102b, means a civil action based on negligence.

In addition, Boston Steel does not dispute that, if Liberty Oil’s apportionment complaint were based on allegations of negligence by Boston Steel that did not in any way involve Boston Steel’s conduct as a product seller, within the meaning of our statutes governing product liability; General Statutes §§ 52-572m through 52-572q;* ****** the apportionment complaint would be proper. That is because, in that instance, the provisions of § 52-572h would plainly apply. See General Statutes § 52-572h (b) and (c), as amended by P.A. 99-69, as set forth in footnote 7 of this opinion.

The question raised by the present case, however, is whether § 52-572h, as amended by P.A. 99-69, permits an apportionment complaint that seeks to limit its allegations against a product seller, as defined by our product liability statutes, to allegations of negligence. We conclude that it does not, because of the provisions of our product liability statutes, as we have interpreted them, and because of the specific provisions of § 52-572h, as contained in P.A. 99-69, § 1 (o).

First, the allegations of the apportionment complaint are that Boston Steel “designed, manufactured, installed, distributed, or sold” the portion of the oil truck from which the plaintiff allegedly fell. These allegations are classic allegations of product liability. See, e.g., General Statutes § 52-572m (a) (“ ‘[p]roduct seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption”); see footnote 8 of this opinion for the full text of § 52-572m. It cannot be disputed that Boston Steel is, under the allegations of the apportionment complaint, a “ ‘product seller’ ” within the meaning of § 52-572m. See also General Statutes § 52-572m (b) (“ ‘[p]roduct liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product”).

Second, under § 52-572m (b), a “ ‘[pjroduct liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent . . . .” Thus, despite the limitations by Liberty Oil of its allegations of misconduct to allegations of negligence, the allegations of the apportionment complaint constitute a “ ‘[p]roduct liability claim’ ” within the meaning of § 52-572m (b).

Section 52-572n (a) provides: “A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.” See footnote 8 of this opinion for the full text of § 52-572n. It is now beyond dispute that this provision “provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim.” Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 463, 562 A.2d 517 (1989) (plaintiff cannot avoid product liability statute of limitations by pleading product liability claim in common-law terms); Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986) (common-law claim based on product liability barred by § 52-572n [a]); compare Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 298-99, 627 A.2d 1288 (1993) (loss of consortium claim not barred by Product Liability Act); Paul v. McPhee Electrical Contractors, 46 Conn. App. 18, 21, 698 A.2d 354 (1997) (no apportionment claim permitted based on allegations of product liability).

Liberty Oil cannot, therefore, convert its apportionment claim against Boston Steel into something other than a product liability claim simply by alleging only negligent misconduct. Put another way, we fail to see why, if a claimant may not avoid the exclusivity provision of § 52-572n (a) by casting his pleading in common-law terms, a defendant seeking to bring in an apportionment defendant should be permitted to do so.

In addition, the provisions of § 52-572h, as amended by P.A. 99-69, lead us to the same conclusion. We first note that P.A. 99-69 governs this action. Section 2 of P.A. 99-69 provides: “This act shall take effect from its passage and shall be applicable to any civil action pending or filed on or after August 11, 1998.” The present case was pending on August 11, 1998.

Public Act 99-69 amended § 52-572h by adding subsection (o), which provides: “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.”

The general effect of P.A. 99-69, § 1 (o), was to make clear that the apportionment principles of § 52-572h do not apply where the purported apportionment complaint rests “on any basis other than negligence,” and that these other bases include, without limitation, “intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute . . . .” The legislative history of P.A. 99-69 makes clear that its principal purpose was to overrule legislatively a portion of this court’s decision in Bhinder v. Sun Co., 246 Conn. 223, 717 A.2d 202 (1998). See, e.g., 42 S. Proc., Pt. 6, 1999 Sess., pp. 1797-98, remarks of Senator Donald E. Williams, Jr.; 42 H.R. Proc., Pt. 6, 1999 Sess., p. 1916, remarks of Representative Michael P. Lawlor; id., pp. 1918-19; see also generally Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1999 Sess., pp. 1271-74, 1310-29, 1340-46, 1355-58, 1362, 1365, 1418-20, 1426-31; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1999 Sess., pp. 1538-50.

In Bhinder v. Sun Co., supra, 246 Conn. 225, the plaintiff brought a wrongful death action against the defendant based on negligence. The defendant sought to apportion its liability to an apportionment defendant whose conduct was not negligent, but intentional, reckless, wilful and wanton. Id., 229. This court held that: (1) as a matter of statutory interpretation, “the plain language of § 52-572h provides that only negligent persons may be cited in by the defendant for apportionment of liability purposes”; id., 230; and (2) nonetheless, “as a matter of common law, we should extend the policy of apportionment to permit a defendant in a negligence action to cite in as an apportionment defendant a party whose conduct is alleged to be reckless, wilful, and wanton.” Id., 234. Bhinder was decided on August 11, 1998. Id., 224.

The legislative response to Bhinder was prompt. In the next legislative session, the legislature amended § 52-572h through P.A. 99-69 by adding subsection (o), which was effective as to all actions pending on or filed after the date of the Bhinder decision. In doing so, it accomplished three purposes. First, the legislature reaffirmed that, as a matter of statutory interpretation, only negligent persons may be cited in as apportionment defendants pursuant to the statute. Thus, in this respect, P.A. 99-69 endorsed the corresponding statutory interpretation part of Bhinder. Second, the legislature made clear its intent that apportionment principles would not apply where the basis of liability of the purported apportionment defendant was based on conduct “other than negligence,” including but not limited to intentional, wanton or reckless misconduct, strict liability, and liability pursuant to any cause of action created by statute. Thus, in this respect, the legislature made clear its intent to overrule the common-law portion of Bhinder. It went beyond the facts oí Bhinder, however, which had been limited to allegations of common-law intentional, wanton and reckless misconduct. The legislature also included a specific bar to apportionment principles where the apportionment defendant’s purported misconduct was based on strict liability or on a statutory cause of action. Third, the legislature made clear its intent that, despite the specific bar to apportionment regarding statutory actions, liability may be apportioned among parties liable for negligence in statutory actions based on negligence, such as 'wrongful death actions and actions for injuries caused by state-owned motor vehicles. Thus, the legislature in effect anticipated, and made clear its rejection of, a potential argument that statutory actions should not be considered to be actions “based on negligence,” which is ordinarily understood to be a common-law, and not a statutory, concept, and also made clear that, where the statutory action in question is based on allegations of negligence, apportionment principles would apply.

It is significant that actions based on “strict liability” are among the types of actions that the legislature specifically noted as not affording apportionment. Product liability is simply a form of strict liability. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 210-11, 694 A.2d 1319 (1997). In fact, General Statutes § 52-5721, which provides that “[i]n causes of action based on strict tort liability,” contributory and comparative negligence shall not be a bar to recovery, contemplates that strict liability and product liability are forms of the same tort. Section 52-5721 further provides that “[njoth-ing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.”

Thus, it would be inconsistent with the provisions of § 52-572h, as amended by P.A. 99-69, § 1 (o), to permit a defendant sued in negligence to claim apportionment against a product seller whose alleged misconduct tracks that of product liability, solely because the party seeking apportionment chooses to limits its allegations to those sounding in negligence. Indeed, the specific bar to apportionment to a party based on strict liability is most plausibly read as a legislative affirmation of the Appellate Court’s decision, referred to previously, in Paul v. McPhee Electrical Contractors, supra, 46 Conn. App. 21, that a product liability claim cannot be the basis of apportionment under § 52-572h. See State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986) (legislature may be presumed to know state of law governing subject matter of legislation).

Liberty Oil argues that P.A. 99-69, § 1 (o), supports its position because of its provision that apportionment is allowed between “parties liable for negligence in any cause of action created by statute based on negligence . . . .” Thus, Liberty Oil contends, “[g]iven that the . . . apportionment claim alleges negligence in relation to a defective product, the apportionment complaint involves a statutory cause of action based upon negligence, and P.A. 99-69 does not prohibit but instead permits apportionment here.” Implicit in this argument is the notion that a product liability claim is the kind of “cause of action created by statute based on negligence” that P.A. 99-69, § 1 (o), envisions. We disagree.

First, that interpretation would conflict with the specific bar to apportionment for actions based on “strict liability,” of which product liability, albeit now statutory, is simply a form. The specific reference barling apportionment involving actions based on strict liability trumps the more general notion implicit in Liberty Oil’s contention.

Second, the statutory actions based on negligence given as examples, namely, wrongful death and injuries caused by state-owned vehicles, are different in their nature from product liability claims. The theory behind the statutory limitation of apportionment claims to those involving negligence is that, in such a case, both the underlying claim of the plaintiff and the apportionment claim of the defendant are in relative pari materia, in that they both involve negligent conduct. The statutory actions based on negligence given as examples are consistent with that theory because they rest on the same notions of fault embodied in nonstatutory negligence actions. Product liability claims, however, do not rest on notions of fault. They rest on more generalized notions of allocation of the plaintiffs loss to the product seller who puts a defective product into the stream of commerce, and therefore ordinarily is able to spread the loss by price adjustments. See Wagner v. Clark Equipment Co., 243 Conn. 168, 194, 700 A.2d 38 (1997). Thus, it would be inconsistent with the theory of the apportionment statute to read it as Liberty Oil proposes.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs amended complaint contained a products liability count against another defendant, Baumert Sales Co., Inc., which is not involved in this appeal.

       Liberty Oil 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).

       Viking Oil, Inc., as the plaintiffs employer, intervened as a plaintiff.

       The specific acts of negligence on the part of Boston Steel alleged by Liberty Oil included: (1) failing to act reasonably; (2) negligently designing the tank and ladder; (3) negligently manufacturing the tank and ladder; (4) negligently installing the tank and ladder; (5) negligently failing to provide adequate warnings concerning the tank and ladder; and (6) failing to make reasonable use of its senses and faculties.

       Meanwhile, Allard has filed an amended complaint reasserting his allegations of negligence against Liberty Oil, and adding a count of product liability against Liberty Oil. In this amended complaint, Allard also has alleged product liability against Baumert Sales Co., Inc., and Boston Steel. Liberty Oil does not claim apportionment against Boston Steel with respect to Allard’s count alleging product liability by Liberty Oil; its apportionment claim is confined to Allard’s allegations against it claiming negligence.
      In addition, Liberty Oil also has filed a third party complaint against Boston Steel claiming indemnification and contribution. Liberty Oil’s third party complaint also is not involved in this appeal.

       General Statutes § 52-102b provides: “Addition of person as defendant for apportionment of liability purposes, (a) A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.
      “(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any parly. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.

        “(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiffs injuries or damage and the plaintiff has previously settled or released the plaintiffs claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiffs claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiffs injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
      “(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
      “(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
      “(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.
      “(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”

       Public Act 99-69, entitled “An Act Concerning Apportionment of Liability between Negligent and Intentional Tortfeasors,” provides: “Be it enacted by the Senate and House of Representatives in General Assembly convened:
      “Section 1. Section 52-572h of the general statutes is repealed and the following is substituted in lieu thereof:
      “(a) For 1he purposes of this section: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniaiy losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages' means the noneconomic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or [his] the person’s legal representative to recover damages resulting from personal injuiy, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for [his] such party’s proportionate share of the recoverable economic damages and the recoverable noneco-nomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for tire court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that 1he portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment.
      “(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
      “(2) An action for contribution shall be brought, within two years after the party seeking contribution has made the final payment in excess of [his] such party’s proportionate share of the claim.
      “(i) This section shall not limit or impair any right of subrogation arising from any other relationship.
      “(j) This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and 1he indemnitor is not entitled to contribution from the indemnitee for any portion of [his] such indemnity obligation.
      “(k) This section shall not apply to breaches of trust or of other fiduciary obligation.
      “(1) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.
      “(m) The family car doctrine shall not be applied to impute contributory or comparative negligence pursuant to this section to the owner of any motor vehicle or motor boat.
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.

        “(o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or dam,ages between parties liable, for

        negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.

      “Sec. 2. This act shall take effect from its passage and shall be applicable to any civil action pending on or filed on or after August 11, 1998.”
      Bracketed material indicates text that was deleted from § 52-572h by P.A. 99-69. Italicized material indicates text that was added to § 52-572h by P.A. 99-69.

       General Statutes § 52-572m provides: “Product liability actions. Definitions. As used in this section and sections 52-240a, 52-240b, 52-572n to 52-572q, inclusive, and 52-577a:
      “(a) ‘Product seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.
      “(b) ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.
      “(c) ‘Claimant’ means a person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity.
      “(d) ‘Harm’ includes damage to property, including the product itself, and personal injuries including wrongful death. As between commercial parties, ‘harm’ does not include commercial loss.
      “(e) ‘Manufacturer’ includes product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer. It includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer.”
      General Statutes § 52-572n provides: “Product liability claims, (a) A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.
      “(b) A claim may be asserted successfully under said sections notwithstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller.
      “(c.) As between commercial parties, commercial loss caused by aproduct, is not harm and may not be recovered by a commercial claimant in a product liability claim. An action for commercial loss caused by a product may be brought only under, and shall be governed by, title 42a, the Uniform Commercial Code.”
      General Statutes § 52-572o provides: “Comparative responsibility. Award of damages. Action for contribution, (a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.
      “(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.
      “(c) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.
      “(d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.
      “(e) If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.”
      General Statutes § 52-572p provides: “Limitation of liability of product seller, (a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.
      “(b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller.”
      General Statutes § 52-572q provides: “Liability of product seller due to lack of adequate warnings or instructions, (a) A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.
      “(b) In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions.
      “(c) In claims based on this section, the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.
      “(d) A product seller may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take or recommend precautions against the potential harm.”

       There is, however, an exception to the bar to apportionment for actions created by statute, namely, actions created by statute that are “based on negligence,” such as, but not limited to, “an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.” Public Act 99-69, § 1 (o).

       Senator Williams stated during the legislative debate in the Senate: “The intent of this legislation is to restore the state of the laws as it existed prior to a Connecticut supreme court decision in [Bhinder v. Sun Co., supra, 246 Conn. 223]. ... It simply allows apportionment of liability and damages only in actions based on negligence. So, essentially this would not allow such apportionment between a negligent and an intentional tortfeasor. And through that, Madam President, it would restore us to the state of the law that existed through tort reform legislation in the 1980’s, and I move adoption.” 42 S. Proc., supra, p. 1797-98.

       During the legislative debate in the House of Representatives, Representative Lawlor stated: “This bill intends to correct what many people interpret to be a wrongful decision by our state Supreme Court made last August. . . . [T]his bill intends to clarify what everyone had understood the law to be prior to a decision of our state Supreme Court last August.” 42 H.R. Proc. supra, p. 1916.

       Representative Lawlor further stated in the legislative debate in the House of Representatives: “[I]f I could just state for legislative intent so that there’s no mistake about what the General Assembly intends in proposing and hopefully passing this bill, it’s the intent of this legislation to restore the state of the law as it existed prior to the state Supreme Court decision last August 11th in [Bhinder v. Sun Co., supra, 246 Conn. 223]. . . . The bill simply allows apportionment of liability and damages only in actions based on negligence. And let me emphasize Madam Speaker, there was a great deal of concern among the various parties and interests who are represented here at the legislature as to whether or not in some way this bill would do more than go back to the way the law was prior to last August’s Supreme Court decision. It’s, based on the testimony before our committee and the discussions that have happened prior [to] today, it’s very clear that the only intent here is to put the law back where everyone understood it to be last year. That’s the only purpose of this bill.” 42 H.R. Proc., supra, pp. 1918-19.


author: MCDONALD, C. J.

text:
    GETTY PETROLEUM MARKETING, INC. v. WAGAR AHMAD GETTY PETROLEUM MARKETING, INC. v. E. Z. SAVE, INC., ET AL.
    (SC 16168)
    (SC 16169)
    McDonald, C. J., and Norcott, Palmer, Sullivan and Vertefeuille, Js.

      Argued February 18
    officially released July 25, 2000

      Charles T. Lee, with whom, on the brief, were Harold, N. Eddy, Jr., and Matthew S. Antonetti, for the appellant (plaintiff).

      DonaldP. Reney, Jr., for the appellees (defendants).
   Opinion

MCDONALD, C. J.

In the present cases, the plaintiff, Getty Petroleum Marketing, Inc., appeals from the judgments of the trial court dismissing its summary process actions against the defendants, Wagar Ahmad, E.Z. Save, Inc., and Shop-Ways, Inc., after that court found that the plaintiff had failed to provide notice to the defendants as required by General Statutes § 42-133f (a) of the Connecticut franchise act (general franchise act), General Statutes §§ 42-133e through 42-133h, for termination of the leases between the parties. We conclude that such notice was not required because the parties’ agreements do not create franchises within the meaning of the general franchise act.

The following facts and procedural history are relevant to these appeals. On March 16,1993, the plaintiffs predecessor in interest, Getty Petroleum Coloration, and Ahmad entered into written agreements entitled Retail Gasoline Lease Agreement and Lessee Supply Contract (agreements) for a retail gasoline station located at 154 South Main Street in Torrington (Torring-ton station). The agreements were for a period of three years.

Ahmad subsequently assigned the agreements to E.Z. Save, Inc., and Shop-Ways, Inc., but he remained liable for payment and performance of all the terms and conditions of the agreements. The period of these agreements subsequently was extended to March 31, 1999.

On July 3,1993, the plaintiff and Ahmad entered into a set of second written agreements that also were entitled Retail Gasoline Lease Agreement and Lessee Supply Contract ( second agreements) for a retail gasoline station located at 44 South Street in Bristol (Bristol station). The second agreements concerning the Bristol station are identical in their substance to the agreements concerning the Torrington station. The term of the second agreements also was for a period of three years. These second agreements subsequently were extended to July 31, 1999.

On April 7,1998, the plaintiff informed the defendants that the agreements concerning the Torrington station were terminated effective May 10, 1998. The plaintiff claimed that the defendants had defaulted on the agreements by failing to maintain proper inventory records and to perform required gauge and water checks at the Torrington station’s fuel tanks, and by consistently and repeatedly failing to deliver to the plaintiff in a timely manner the funds received for sales of the plaintiffs gasoline at that station. The defendants did not vacate the premises. The plaintiff then caused notices to quit to be served on the defendants and later filed a summary process complaint.

On May 19, 1998, the plaintiff informed Ahmad that the second agreements concerning the Bristol station were terminated effective May 29, 1998. The plaintiff claimed that Ahmad had refused to pump the plaintiffs gasoline at the Bristol station. Later, the plaintiff served a notice to quit on Ahmad and, still later, a summary process complaint seeking possession of the Bristol station.

After conducting separate trials, the trial court dismissed both summary process complaints for lack of jurisdiction. The trial court concluded that the plaintiff had not provided the required notice to the defendants under the general franchise act for termination of the leases between the parties, and that the failure to provide that notice was a jurisdictional defect. In reaching this conclusion, the trial court reasoned that although the parties’ arrangements did not qualify as franchises under the petroleum franchise act; General Statutes §§ 42-133j through 42-133n; the general franchise act was applicable. The trial court concluded that the parties had a franchise relationship under the general franchise act, and that the plaintiffs actions had to be dismissed because the general franchise act requires, inter alia, advance notice of at least sixty days before termination of a franchise. See footnote 1 of this opinion. The plaintiff appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff claims that the trial court improperly applied the general franchise act to these actions, because only the petroleum franchise act may be applied to the distribution and sale of motor fuel. The plaintiff argues that, after finding that the parties’ agreements did not create franchises under the petroleum franchise act because the plaintiff was not a franchisor under that act, the trial court should not have proceeded to analyze the plaintiffs claims under the general franchise act. The plaintiff also claims that, even if we conclude that the general franchise act does apply, the trial court improperly determined that the agreements constituted franchises within the meaning of that act. We agree with the plaintiff that the parties’ agreements do not create franchises within the meaning of the general franchise act and find this conclusion dispositive of the appeal. Accordingly, we reverse the judgments of the trial court and remand the cases back to that court for further proceedings.

The trial court’s findings that the agreements established franchises subject to the provisions of the general franchise act are findings of fact, and we reverse such findings only when they are clearly erroneous. See, e.g., Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345, 736 A.2d 824 (1999). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” Id., 345-46.

Section 42-133e (b) of the general franchise act defines franchise as “an oral or written agreement or arrangement in which (1) a franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor, provided nothing contained herein shall be deemed to create a franchisor-franchisee relationship between the grantor and grantee of a lease, license or concession to sell goods or services upon or appurtenant to the premises of the grantor, which premises are occupied by the grantor primarily for its own independent merchandising activities; and (2) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor or its affiliate, and includes any agreement between a manufacturer, refiner or producer and a distributor, wholesaler or jobber, between a manufacturer, refiner or producer and a retailer, or between a distributor, wholesaler or jobber and a retailer . ...” A franchisee under the act is defined as “a person to whom a franchise is granted, including a distributor, wholesaler or jobber or retailer who is granted the authority under a franchise to use a trademark, tradename, service mark or other identifying symbol or name.” General Statutes § 42-133e (d). A franchisor is defined in the act as “a person who grants a franchise to another person, including a manufacturer, refiner or producer or a distributor, wholesaler or jobber who grants to a distributor, wholesaler or jobber or retailer, as the case may be, the authority to use a trademark, tradename, service mark or other identifying symbol or name under a franchise . . . .” General Statutes § 42-133e (c).

The trial court found that franchises existed between the parties that were subject to the general franchise act, which requires that a franchisee “engage in the business of offering, selling or distributing goods or services under a marketing plan or system . . . .” General Statutes § 42-133e (b). As evidence of a marketing plan, the trial court cited the fact that the plaintiff had a large amount of control over the defendants’ sale of gasoline, such as setting the price of the gasoline, requiring a minimum gallonage of gasoline to be sold each month, requiring approval for all signs and advertising, and requiring that the defendants operate the stations during certain hours and in accordance with the plaintiffs standards of quality, appearance, cleanliness and service. We do not review the trial court’s finding that a marketing plan existed because we conclude that there is no evidence to support the trial court’s finding that the defendants were engaged in the business of offering, selling or distributing gasoline under such a marketing plan. We conclude that such evidence was required for there to be franchises.

The definition of a franchise under the general franchise act expressly requires that the franchisee be “granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system . . . .” General Statutes § 42-133e (b). The definition “requires a two-step inquiry. First, the franchisee must have the right to offer, sell or distribute goods or services. Second, the franchisor must substantially prescribe a marketing plan for the offering, selling or distributing of goods or services.” Chem-Tek, Inc. v. General Motors Corp., 816 F. Sup. 123, 127 (D. Conn. 1993).

The following additional facts are necessary to the determination of whether the agreements gave the defendants the right to engage in the business of offering or selling goods under a marketing plan or system. The agreements provided that the plaintiff would deliver gasoline and other petroleum products to the defendants and would set the price for the sale of that gasoline at the gasoline stations leased to the defendants. The agreements further provided that the plaintiff retained ownership of the gasoline after delivery to the defendants “until sold to [the plaintiffs] customers.” The plaintiff also owned all of the income and accounts receivable arising out of the sale of the gasoline. The defendants are referred to in the agreements as “commission agents” and were paid a commission of $.065 per gallon “for each gallon of ‘Getty’ gasoline sold through the [plaintiffs] marketing equipment . . . .” The defendants were required under the agreements promptly to deposit the proceeds from gasoline sales in the plaintiffs drop safes. The defendants also operated convenience stores at both locations leased from the plaintiff. The operation of the stores was completely independent, however, from the defendants’ relationship with the plaintiff.

No Connecticut appellate court has addressed the meaning of the terms “offering” or “selling” under the general franchise act. The United States District Court, however, has analyzed those terms in the context of a case with facts similar to those before us.

In Automatic Comfort Corp. v. D & R Service, Inc., 627 F. Sup. 783, 787 (D. Conn. 1986), the court thoroughly analyzed the concept of engaging in the business of offering or selling gasoline under the petroleum franchise act, and held that the contract between the plaintiff and the defendant in that case was not a franchise under that act. The court reasoned that “[w]hile [the] defendant was clearly operating within a marketing plan dictated by [the] plaintiff . . . the parties’ contract did not frame a relationship which Connecticut has defined as a franchise”; (citation omitted) id., 786; because the defendant was not a franchisee, or, more specifically, a retailer that was “engaged in the business of offering or selling gasoline.” Id. The court stated that “[t]he question [of whether one is engaged in the business of offering or selling gasoline] can best be analyzed by measuring how far [the] defendant is from the situation of apure employee, who merely takes money and hands it over to his employer. To be a franchise, the franchisee must be engaged in the business of offering or selling gasoline. In actuality it is the plaintiff who is offering/ selling gasoline to the public. It owns the station. It buys the gasoline. It arranges for the acquisition of the gasoline and delivers it to the stations. It sets the prices. It is at risk for any loss of the gasoline at the station except by reason of fault on the part of defendant.” Id. The court noted that “[the] defendant was not at any substantial market risk, nor did it have any substantial indicia of entrepreneurial responsibility.” Id.

We agree with the reasoning of Automatic Comfort Corp. that it is the independent function of the parties in a marketing arrangement that controls whether the parties have created a franchise. In this case, the evidence was that the plaintiff owned the gasoline, delivered the gasoline to the stations and set the price of the gasoline. The agreements provided for the sale of the plaintiffs gasoline, through the plaintiffs equipment to the plaintiffs customers. All cash receipts were to be deposited in the plaintiffs drop safe by the defendants, who were “trustee [s] and custodian[s]” of the plaintiffs funds. There was also evidence that all credit card payments were credited directly to the plaintiff.

Although the agreements did provide that the defendants were responsible for additional rent if they did not sell a minimum gallonage, the defendants did not bear the burden of marketplace risk that is indicative of an independent business operator. Notwithstanding the changing price of motor fuel, the defendants were to receive their commission in a fixed amount for overseeing the pumping of the gasoline and for collecting the sale price from the customers. The defendants’ commission was to be remitted by the plaintiff upon the submission of a weekly invoice. The defendants’ compensation was not affected by the rise and fall in the market price of motor fuel that is indicative of the risk that is assumed by an independent business operator. See Simpson v. Union Oil Co., 377 U.S. 13, 20, 84 S. Ct. 1051, 12 L. Ed. 2d 98 (1964).

Because the plaintiff was selling its own gasoline, with the defendants acting as commission agents to facilitate the exchange, we conclude that there was insufficient evidence to establish that the defendants had any entrepreneurial responsibility as to the sale of gasoline or the gasoline itself. While it may be that the defendants assumed entrepreneurial responsibility for the convenience stores that they operated at the premises, the only goods sold under the plaintiffs trademark were the plaintiffs gasoline, motor oil and other promotional items. See footnote 6 of this opinion. The defendants were functioning as service station managers responsible for seeing that the gasoline was sold and that payments were collected and forwarded to the plaintiff. Because the defendants did not own the gasoline or assume any substantial market risk in its sale, we conclude that they were not retailers in the business of selling gasoline as independent business operators. They were rather, as the court in Automatic Comfort Corp. v. D & R Service, Inc., supra, 627 F. Sup. 786, stated, the “temporary custodian[s] of the gasoline, the caretalcer[s] of the property, the cashier[s], all as part of [the] plaintiffs business.” Because the defendants were not engaged in the business of offering, selling or distributing the gasoline, they were not franchisees under the general franchise act.

Our determination is consistent with the purpose of the general franchise act, which is to protect independent business persons who have assumed an entrepreneurial role and who face the risk of the market. “We believe our State must assume a minimum level of protection to the small business man from a corporation which suddenly and capriciously snatches away his livelihood,” and to small business persons “who have literally sunk their life savings into their businesses and then have seen their investments and their labors go down the drain.” 15 H.R. Proc., Pt. 7, 1972 Sess., p. 2777, remarks of Representative Albert R. Webber. One of the principal remedial provisions of the general franchise act is the requirement that upon termination of the franchise, the franchisor must fairly and reasonably compensate the franchisee for inventory, supplies, equipment and furnishings purchased from the franchisor. General Statutes § 42-133Í (c). This provision is further evidence of the legislative intent to protect business persons who, unlike the defendants, have been required to make substantial investment in components of an entrepreneurial business.

Finding that franchises existed in these cases would blur the distinction between the entrepreneur and one who acts as an agent for another in selling a product. Accordingly, we conclude that the trial court incorrectly accorded the defendants the protection afforded a franchisee under § 42-133L

The judgments are reversed and the cases are remanded to the trial court for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 42-1331' (a) provides: “No franchisor shall, directly, or through any officer, agent or employee, terminate, cancel or fail to renew a franchise, except for good cause which shall include, but not be limited to the franchisee’s refusal or failure to comply substantially with any material and reasonable obligation of the franchise agreement or for the reasons stated in subsection (e) of this section. The franchisor shall give the franchisee written notice of such termination, cancellation or intent not to renew, at least sixty days in advance to such termination, cancellation or failure to renew with the cause stated thereon; provided, in the event the franchisor elects not to renew a franchise pursuant to subsection (e) of this section, the franchisor shall give the franchisee written notice of such intent not to renew at least six months prior to the expiration of the current franchise agreement. The provisions of this section shall not apply (1) where the alleged grounds are voluntary abandonment by the franchisee of the franchise relationship, in which event, such notice may be given thirty days in advance of such termination, cancellation or failure to renew, or (2) where the alleged grounds are the conviction of the franchisee in a court of competent jurisdiction of an offense punishable by a term of imprisonment in excess of one year and directly related to the business conducted pursuant to the franchise, in which event, such notice may be given at any time following such conviction and shall be effective upon delivery and written receipt of such notice.”

       When appropriate, Ahmad, E.Z. Save, Inc., and Shop-Ways, Inc., collectively will be referred to as the defendants.

      Because the second agreements concerning the Bristol station are substantively identical to the agreements concerning the Torrington station, we will address both sets of agreements collectively.

       It is not disputed that the agreements do not establish franchises that are subject to the provisions of the petroleum franchise act.

       Because we reverse the judgments on the basis that no franchise existed, we do not address the plaintiffs argument that the trial court should not have applied the general franchise act to tire agreements. We assume, arguendo, that the act applies in these circumstances.

       The defendants also sold Getty motor oil, steering oil and other promotional items. The trial court found that the defendants purchased these items from the plaintiff and that the defendants set their retail price. Because “ ‘price is perhaps the most fundamental aspect of a marketing plan’ Hartford Electric Supply Co. v. Allen-Bradley Co., supra, 250 Conn. 351; we agree with the trial court that the focus of whether there was a marketing plan was properly on the sale of gasoline, not these other items.

       Because the defendants dealt with the public at a retail level, they clearly were not distributing the gasoline.

       A convenience store is defined as “a retail store that carries a limited selection of basic items, as packaged foods and drugstore items, and is open long hours for the convenience of shoppers.” Random House Dictionary of the English Language (2d Ed. 1987).

       At the time that Automatic Comfort Corp. v. D & R Service, Inc., supra, 627 F. Sup. 783, was decided, and prior to 1991, the requirements for a franchise under the petroleum franchise act and the general franchise act were the same. The general franchise act remains unchanged to this date.

       The agreements between the plaintiff and Ahmad provide in relevant part:
      “Retail Gasoline Station Lease Agreement . . .
      “Agreement made March 16,1993 between Getty Petroleum Corp. hereinafter called ‘Company,’ having its principal office at 125 Jericho Turnpike, Jericho, New York 11753 and Wagar Ahmad, hereinafter called ‘Lessee,’ residing at 2817 Brighton 7th Street, Brooklyn, NY 11235.
      “Station 1. Company hereby leases to Lessee and Lessee hereby agrees to lease from Company the retail gasoline station located at 154 South Main Street, Torrington, CT 06790 (the ‘Station’), Account Number 06798.
      “Term of Lease 2. The term of this lease shall be for a period of three (3) year(s), beginning on March 29, 1993 and ending on March 31, 1996 unless sooner terminated as provided in this lease.
      “Hours of Operation 7. Lessee shall continuously operate and shall keep the Station open for gasoline sales Monday through Saturday 6:00 a.m. to 10:00 p.m. and on Sunday from 7:00 a.m. to 10:00 p.m.
      “Minimum Gallonage 8. Commencing on the fourth month of the term of this agreement, the minimum gallonage for each month shall be equal to eighty percent (80%) of the average of the gallonage sold during each of the first four (4) months of the term of this agreement.

        “Use 12. Lessee shall use and occupy the Station for the sale of gasoline, petroleum products and such other merchandise ....
      * * *
      “Abandonment of Station (a) If the Station is closed or unattended for any period in excess of twenty-four (24 hours); or
      “Cease Use (b) If Lessee fails to operate the Station primarily for the sale of gasoline; or
      “Commingling & Trademark Infringement (c) If Lessee causes or suffers any grade of Getty brand gasoline to be mixed with another grade of Getty brand gasoline, or mixes any other brand or grade of gasoline with Getty brand gasoline in a storage tank connected to a dispensing pump on the premises, or if Lessee sells or holds out for sale as a Getty brand gasoline, gasoline which is not a Getty brand gasoline ....
      •is * *
      “Additional Rent 48. This lease provides that Lessee shall operate a retail gasoline station business and sell gasoline in required minimum quantities. It is the principal business of Company to sell gasoline. This agreement has been entered into by Company based upon Lessee’s covenant to sell gasoline, in at least the minimum quantities provided in Paragraph 8 of this lease. ... In the event that Lessee does not sell the minimum gallonage set forth in Paragraph 8 of this lease during any month of the term of this lease, Lessee shall pay to Company for such month as additional rent, the sum of $.06 per gallon for the difference between the lesser quantity of gallonage sold during any such month and the amount determined to be the minimum gallonage pursuant to Paragraph 8 of this lease for such month. . . .”
      “Lessee Supply Contract . . .
      “Creation of Franchise 1. Company shall sell and Lessee shall sell as commission agent during the entire term of this contract and any extensions and renewals hereof, the gasoline, motor oil and other products marketed and used by Company, as determined by Company.
      * * *
      “Price for Products and Commission Taxes 4. The prices for the products sold to the public shall be those posted or listed by Company at the time and place of delivery. All prices are subject to change by Company. Company shall pay Lessee a commission as set forth in Paragraph ‘51’ ....
      * * *
      “Use 13. Lessee shall use the Station solely as a retail gasoline station.
      “Trademark 14. Company hereby grants to Lessee a license to use, and Lessee shall use Company’s trademarks, trade names, brand names, labels, insignias, symbols or imprints to identify and advertise Company’s products and shall not use such trademarks . . . for any other purpose. . . .
      * *
      “Advertising 19. Lessee shall obtain Company’s approval on signs and advertising, including color schemes.
      * * *

        “Uniforms 23. Lessee and all its employees shall be dressed in uniforms approved by Company when working at the Station.
      “Inspection Quality Control 24 Lessee shall permit Company, by its representatives or agents, to enter onto the Station at any time to inspect the Station, to obtain samples of gasoline and other products, and to take pump and gasoline stick readings.
      * ** *
      “Standards 27. Lessee shall operate the Station in accordance with Company’s standards of quality, appearance, cleanliness and service, provide adequate illumination for the Station and shall provide qualified and neatly dressed attendants to render first class service to customers.
      “RIDER to Lessee Supply Contract made March 16, 1993 between Getty Petroleum Corp. (the ‘Company’) and Wagar Ahmad (‘Lessee’).
      “Commission 51. Company agrees to pay to the Lessee a commission at the rate set forth in the table below for each gallon of ‘Getty’ gasoline sold through the Company’s marketing equipment during each calendar month:
      Range of Gallons Cents Per Gallon
      all gallons $.065
      “Lessee will invoice Company on the first business day of each week, setting forth the gallonage sold (on a gallons-per-day basis by grade) and commission earned during the previous week. Lessee shall also supply pump readings showing dollar and gallonage amounts and inventory reconciliation. Company shall pay to Lessee the commission earned within 14 days of receipt of invoice.
      “The commission is Lessee’s sole remuneration for the services to be provided hereunder and Lessee shall not receive any other compensation or reimbursement, unless approved in writing by Company. . . .
      “Inventory & Revenue Responsibility 53. Lessee agrees to be responsible for the inventory belonging to the Company and for the collection of all monies for the sale of sold inventory. Cash receipts for sale of all products shall be deposited in station drop safes according to Company procedures. Lessee shall be trustee and custodian of Company funds and shall make adequate provisions for turning such funds over to the Company ....
      “Title to Proceeds and Products 55. All income and accounts receivable arising from the sale of Company products shall be and remain the property of Company. It is understood that Company shall retain title to all such products delivered by or for Company to custody of Lessee for the account of Company and that title to products shall remain in Company until sold to Company’s customers. Company will not furnish a petty cash fund for the operation of the facility.”

       The lease provided that the defendants would pay additional monthly rent of six cents per gallon for every gallon of gasoline less than the monthly minimum number of gallons to be sold. Although this additional rent might represent some risk, it does not represent a substantial marketplace risk linked to the fluctuations in the price of gasoline in the market. It is, rather, a clause in the contract to ensure that the defendants devote their efforts to pump a minimum quantity of the plaintiff’s gasoline.

       Although the Lessee Supply Contracts attach the label “franchise” to the arrangements between the plaintiff and Ahmad, the parties’ characterizations, under the circumstances of this case, are not determinative of the issues before this court. See Automatic Comfort Corp. v. D & R Service, Inc., 620 F. Sup. 1349, 1354 (D. Conn. 1985).


text:
    STATE OF CONNECTICUT v. MCGARRETT WALLACE

      Richard A. Reeve, special public defender, in support of the petition.

      James M. Ralls, senior assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 730 (AC 17425), is denied.

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


text:
    STATE OF CONNECTICUT v. HERIBERTO CRUZ
    The Supreme Court docket number is SC 16299.
    Decided April 28, 2000

      Richard S. Cramer, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 763 (AC 18323), is granted, limited to the following issue:

“Did the Appellate Court properly allow the testimony of a social worker identifying the defendant as the perpetrator under the medical treatment exception to the hearsay rule?”


text:
    GREG C.’S APPEAL FROM PROBATE
   The plaintiff Greg C.’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 439 (AC 18392), is denied.

Royal J. Stark, in support of the petition.

William F. Breg, in opposition.

Decided April 28, 2000

SULLIVAN and VERTEFEUILLE, Js., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. ROBERT LEPRI

      Gary A. Mastronardi, in support of the petition.

      Ellen A. Jawitz, assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 403 (AC 18769), is denied.

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


text:
    STATE OF CONNECTICUT v. KENYA L. BEST

      Raymond J. Rigat, in support of the petition.

      Lisa A. Riggione, senior assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 742 (AC 18895), is denied.

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


text:
    OCI MORTGAGE CORPORATION v. CAROLE N. MARCHESE ET AL.
    The Supreme Court docket number is SC 16300.

      Matthew B. Woods, in support of the petition.

      Matthew J. Broder, in opposition.
    Decided April 28, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 56 Conn. App. 668 (AC 18909), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that 12 U.S.C. § 1823 (e) and the doctrine of D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942), did not apply to the defendants so as to bar their defenses of setoff and payment of the mortgage note?”

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


text:
    WILLIAM COTTER ET AL. v. ALLSTATE INSURANCE COMPANY

      Gregory E. O’Brien, in support of the petition.

      Terence A. Zemetis, in opposition.
    Decided April 28, 2000
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 56 Conn. App. 912 (AC 18914), is denied.


text:
    STATE OF CONNECTICUT v. MATTHEW ROBINSON

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

      Frederick W. Fawcett, supervisory assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 794 (AC 19242), is denied.


text:
    STATE OF CONNECTICUT v. MACK YOUNG

      Richard E. Condon, Jr., deputy assistant public defender, in support of the petition.

      Robert M. Spector, deputy assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 831 (AC 19343), is denied.


text:
    STATE OF CONNECTICUT v. THOM N. ASHBY

      Thom N. Ashby, pro se, in support of the petition.

      Harry Weller, senior assistant state’s attorney, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 908 (AC 19506), is denied.


text:
    BELLA VISTA CONDOMINIUM ASSOCIATION, INC. v. BENJAMIN GYADU

      Benjamin Gyadu, pro se, in support of the petition.

      Joseph J. Popolizio, in opposition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court (AC 19693) is dismissed.

MCDONALD, C. J., and SULLIVAN and VERTEFEU-ILLE, Js., did not participate in the consideration or decision of this petition.


text:
    BELLA VISTA CONDOMINIUM ASSOCIATION, INC. v. BENJAMIN GYADU

      Benjamin Gyadu, pro se, in support of the petition.
    Decided April 28, 2000
   The defendant’s petition for certification for appeal from the Appellate Court (AC 19693) is dismissed.

MCDONALD, C. J., and SULLIVAN and VERTEFEU-ILLE, Js., did not participate in the consideration or decision of this petition.


text:
    ADDISON M. BENNINGS v. NEW HAVEN COMMUNITY CORRECTIONAL INSTITUTION

      Addison M. Bennings, pro se, in support of the petition.
    Decided April 28, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 20237) is denied.


text:
    STATE OF CONNECTICUT v. JOHN MANN

      John R. Williams, in support of the petition.

      Michele C. Lukban, assistant state’s attorney, in opposition.
    Decided May 4, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 856 (AC 17941), is denied.


text:
    STATE OF CONNECTICUT v. JOHN E. GUNDEL

      Gary A. Mastronardi, in support of the petition.

      Marjorie Allen Dauster, assistant state’s attorney, in opposition.
    Decided May 4, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 805 (AC 18475), is denied.


text:
    LEVEY MILLER MARETZ v. 595 CORPORATE CIRCLE ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 56 Conn. App. 815 (AC 18716), is granted, limited to the following issues:

“1. Did the Appellate Court correctly determine that a real estate listing agreement was unenforceable under General Statutes (Rev. to 1991) § 20-325a on the ground that the signatures of the general partners of the partnership ownership of the property were not acknowledged and witnessed?

The Supreme Court docket number is SC 16304.

Edwin L. Doemberger, in support of the petition.

James C. Graham, in opposition.

Decided May 4, 2000

“2. Did the Appellate Court correctly determine that the amendments to General Statutes § 20-325a, enacted by No. 94-240 of the 1994 Public Acts, did not apply to real estate listing agreements signed prior to the effective date?”


text:
    IN RE ERNEST J. COCKAYNE’S APPEAL FROM PROBATE

      Alfred F. Morrocco, Jr., in support of the petition.
    Decided May 4, 2000
   The petitioner Ernest J. Cockayne’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 913 (AC 19184), is denied.


text:
    RONEY HARRIS v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.

      Roney Harris, pro se, in support of the petition.

      Jason M. Dodge, in opposition.
    Decided May 4, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 56 Conn. App. 912 (AC 19399), is denied.


text:
    STATE OF CONNECTICUT v. ROBERT HORROCKS

      Harry Weller, senior assistant state’s attorney, in support of the petition.

      Lauren Weisfeld, assistant public defender, in opposition.
    Decided May 4, 2000
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 57 Conn. App. 32 (AC 17653), is denied.

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


text:
    JEANINE DIXON v. UNITED ILLUMINATING COMPANY

      George J. Markley, in support of the petition.

      Andrew A. Cohen, in opposition.
    Decided May 4, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 57 Conn. App. 51 (AC 18360), is denied.


text:
    STATE OF CONNECTICUT v. GREGORY J. CORREA

      Pamelas. Nagy, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 98 (AC 18505), is denied.

Timothy J. Sugrue, senior assistant state’s attorney, in opposition.

Decided May 4, 2000


text:
    STATE OF CONNECTICUT v. WILLIAM TAFT
    The Supreme Court docket number is SC 16305.

      Richard E. Condon, Jr., deputy assistant public defender, in support of the petition.

      Robert M. Spector, deputy assistant state’s attorney, in opposition.
    Decided May 4, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 19 (AC 18629), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court properly denied the defendant’s motion for a mistrial?”

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


text:
    STATE OF CONNECTICUT v. JEREMIAH SAMUEL, JR.

      Mary Anne Royle, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 64 (AC 18658), is denied.

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

Decided May 4, 2000


text:
    RICCARDO I. AMBROGIO, D.M.D. v. BEAVER ROAD ASSOCIATES ET AL.

      Richard S. Order, in support of the petition.

      Robyn L. Sondak, in opposition.
    Decided May 4, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 20398) is denied.

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


text:
    STATE OF CONNECTICUT v. JOHN MITCHELL

      William S. Palmieri, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided May 18, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 561 (AC 18366), is denied.


text:
    DEBORAH A. AMODIO v. VINCENT N. AMODIO

       The appeal was withdrawn September 27, 2000.

   The defendant’s petition for certification for appeal from the Appellate Court, 56 Conn. App. 459 (AC 15692), is granted, limited to the following issues:

The Supreme Court docket number is SC 16312.

Donald L. Altschuler, in support of the petition.

Decided May 18, 2000

“1. Did the Appellate Court properly conclude that the trial court improperly exercised its authority under General Statutes § 46b-86 (a) and improperly applied McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992)?

“2. Did the Appellate Court properly conclude that the child support order in this case was nonmodifiable?”

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


text:
    H.O.R.S.E. OF CONNECTICUT, INC. v. TOWN OF WASHINGTON
    The Supreme Court docket number is SC 16313.
    William C. Franklin, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 41 (AC 18353), is granted, limited to the following issues:

“Did the Appellate Court properly conclude that: (1) there were no material facts in dispute regarding whether the plaintiffs property is used exclusively for charitable purposes under General Statutes § 12-81 (7); and (2) even if there were no such facts in dispute, as a matter of law the plaintiff is a charitable organization under § 12-81 (7), and uses its property exclusively for charitable purposes?”

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

Jeffrey J. Tirdey, in opposition.

Decided May 18, 2000


text:
    STATE OF CONNECTICUT v. JOE ALAMO

      H. Jeffrey Beck, in support of the petition.

      Susann E. Gill, senior assistant state’s attorney, in opposition.
    Decided May 18, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 233 (AC 19059), is denied.


text:
    STATE OF CONNECTICUT v. DAVID BOYD

      Melvin A. Simon, special public defender, in support of the petition.

      Toni M. Smith-Rosario, deputy assistant state’s attorney, in opposition.
    Decided May 18, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 176 (AC 18167), is denied.

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


text:
    STATE OF CONNECTICUT v. LARRY JOHNSON
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 156 (AC 18405), is denied.

Del Atwell, special public defender, in support of the petition.

Lawrence J. Tytla, senior assistant state’s attorney, in opposition.

Decided May 18, 2000

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


text:
    STATE OF CONNECTICUT v. RONALD THORP

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

      Marjorie Allen Dauster, assistant state’s attorney, in opposition.
    Decided May 18, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 112 (AC 18539), is denied.


text:
    BANKERS TRUST COMPANY v. PENELOPE KINNEY ET AL.

      Penelope Kinney, pro se, in support of the petition.
    Decided May 18, 2000
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 20248) is denied.

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


text:
    FRANK A. SHERER ET AL. v. BOARD OF TAX REVIEW OF THE TOWN OF MIDDLEBURY

      Frank A. Sherer, pro se, in support of the petition.

      Robert W. Smith, in opposition.
    Decided May 18, 2000
   The named plaintiffs petition for certification for appeal from the Appellate Court (AC 19939) is denied.

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


text:
    STATE OF CONNECTICUT v. ANTHONY FISHER

      KirstinB. Coffin, special public defender, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided May 25, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 371 (AC 18314), is denied.


text:
    STATE OF CONNECTICUT v. RICARDO MILLS
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 57 Conn. App. 202 (AC 17986), is denied.

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

Harry Weller, senior assistant state’s attorney, in support of the petition.

Elizabeth M. Inkster, assistant public defender, in opposition.

Decided May 25, 2000


text:
    STATE OF CONNECTICUT v. RICARDO MILLS

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

      Harry Weller, senior assistant state’s attorney, in opposition.
    Decided May 25, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 202 (AC 17986), is denied.

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


text:
    GEORGE M. MANDES v. ROBERT GODIKSEN ET AL.

      Kenneth J. Bartschi and Wesley W. Horton, in support of the petition.

      Geraldine Battistoli, in opposition.
    Decided May 31, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 57 Conn. App. 79 (AC 18532), is denied.


text:
    STATE OF CONNECTICUT v. MICHAEL ATKINS

      Cameron Dorman, special public defender, in support of the petition.

      John A. East III, assistant state’s attorney, in opposition.
    Decided May 31, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 248 (AC 18693), is denied.


text:
    STATE OF CONNECTICUT v. MICHAEL SMITH

      William B. Westcott, special public defender, in support of the petition.
    Decided May 31, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 290 (AC 18260), is denied.


text:
    BEVERLY L. GRIMM v. ROBERT L. GRIMM

      John Wayne Fox, in support of the petition.
    Decided May 31, 2000
   The defendant’s petition for certification for appeal from the Appellate Court (AC 20582) is denied.

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


text:
    ANN DIAZ v. HOUSING AUTHORITY OF THE CITY OF STAMFORD ET AL.
    The Supreme Court docket number is SC 16324.

      Gregory F. Lisowski, in support of the petition.
    Decided June 19, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 56 Conn. App. 913 (AC 19214), is granted, limited to the following issue:

“Whether an employee’s discharge for not returning to work, while claiming she was unable to do so because of a compensable injury within two days of her discharge, constitutes a prima facie violation of General Statutes § 31-290a, requiring the employer to show a legitimate, nondiscriminatory reason for the discharge pursuant to Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990)?”


text:
    BEN GYADU v. HARTFORD INSURANCE COMPANY ET AL.

      Ben Gyadu, pro se, in support of the petition.
    Decided June 19, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 56 Conn. App. 911 (AC 19626), is denied.

MCDONALD, C. J., and SULLIVAN and VERTEFEUILLE, Js., did not participate in the consideration or decision of this petition.


text:
    DAVID D’ADDARIO, EXECUTOR (ESTATE OF F. FRANCIS D’ADDARIO), ET AL. v. LUCIEN TRUSKOSKI ET AL.

      Ridgely W. Brown, in support of the petition.

      Kara A. T. Murphy and Frank W. Murphy, in opposition.
    Decided June 19, 2000
   The defendants’ petition for certification for appeal from the Appellate Court, 57 Conn. App. 236 (AC 17723), is denied.

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


text:
    DELORES D. STEWART v. LEROY STEWART

      Delores D. Stewart, pro se, in support of the petition.
    Decided June 19, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 57 Conn. App. 335 (AC 17791/ AC 18086), is denied.


text:
    NINTH RMA PARTNERS, L.P. v. BARRETT L. KRASS ET AL.

      Kerry M. Wisser and Nathan A. Schatz, in support of the petition.
   The defendants’ petition for certification for appeal from the Appellate Court, 57 Conn. App. 1 (AC 18106), is denied.

SULLIVAN and VERTEFEUILLE, Js., did not participate in the consideration or decision of this petition.

Richard M. Levy, in opposition.

Decided June 19, 2000


text:
    LISA COVILLE v. LIBERTY MUTUAL INSURANCE COMPANY

    The Supreme Court docket number is SC 16325.

      Edward, J. Holahan, Jr., in support of the petition.

      Howard C. Kaplan, Matthew J. Forstadt and Daniel M. Young, in opposition.
    Decided June 19, 2000

       The appeal was withdrawn March 30, 2001.

   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 275 (AC 18425), is granted, limited to the following issue:

“In this underinsured motorist action, did the Appellate Court properly conclude that the trial court’s instructions to the juiy, taken as a whole, failed to fairly and adequately present the case to the jury where the trial court did not specifically charge in accordance with 2 Restatement (Second), Torts §§ 314A and 324 (1965), as requested by the plaintiff?”

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


text:
    THOMAS W. COHN v. PETER JOHL ET AL.

      Daniel, S. Steinberg, in support of the petition.
   The named defendant Peter Johl’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 902 (AC 18463), is denied.

David F. Sherwood, in opposition.

Decided June 19, 2000


text:
    RALPH J. BIRCH v. COMMISSIONER OF CORRECTION

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

      Lisa A. Riggione, senior assistant state’s attorney, in opposition.
    Decided June 19, 2000
   The petitioner Ralph J. Birch’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 383 (AC 18671), is denied.


text:
    TODD C. MORRISON v. COMMISSIONER OF CORRECTION

      Todd A. Edgington, assistant public defender, in support of the petition.

      Nancy L. Chupak, deputy assistant state’s attorney, in opposition.
    Decided June 19, 2000
   The petitioner Todd C. Morrison’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 145 (AC 18887), is denied.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. SAMUEL E. DIXON, JR.
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 904 (AC 18977), is denied.

Samuel E. Dixon, Jr., pro se, in support of the petition.

Elizabeth F. Collins, assistant bar counsel, in opposition.

Decided June 19, 2000

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


text:
    STATE OF CONNECTICUT v. ROBERT SALVATORE

      William T. Koch, Jr., special public defender, in support of the petition.

      Timothy J. Sugrue, senior assistant state’s attorney, in opposition.
    Decided June 19, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 396 (AC 18993), is denied.

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


text:
    ISIDRO RIVERA, JR. v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, special public defender, in support of the petition.
   The petitioner Isidro Rivera, Jr.’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 390 (AC 19062), is denied.

Linda N. Howe, assistant state’s attorney, in opposition.

Decided June 19, 2000


text:
    STATE OF CONNECTICUT v. DARRELL JONES

      Del Atwell, special public defender, in support of the petition.

      Margaret Gaffney Radionovas, assistant state’s attorney, in opposition.
    Decided June 29, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 243 (AC 17689), is denied.


text:
    STATE OF CONNECTICUT v. MICHAEL A. YOUNG

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

      Ronald G. Weller, assistant state’s attorney, in opposition.
    Decided June 29, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 566 (AC 16090), is denied.

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


text:
    STATE OF CONNECTICUT v. MICHAEL A. YOUNG
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 57 Conn. App. 566 (AC 16090), is granted, limited to the following issue:

The Supreme Court docket number is SC 16339.

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

Susan M. Hankins, assistant public defender, in opposition.

Decided June 29, 2000

“Should State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (abandonment of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 [1960] rule) be applied retroactively?”

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


text:
    STATE OF CONNECTICUT v. JOSE LARACUENTE

      Del Atwell, special public defender, in support of the petition.

      Margaret Gaffney Radionovas, assistant state’s attorney, in opposition.
    Decided June 29, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 91 (AC 18091), is denied.


text:
    MECHELLE MEDCALF v. WASHINGTON HEIGHTS CONDOMINIUM ASSOCIATION, INC., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 57 Conn. App. 12 (AC 18185), is denied.

Tad J. Bistor and J. Michael Cantore, Jr., in support of the petition.

David J. Scully, in opposition.

Decided June 29, 2000

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


text:
    TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO
    The Supreme Court docket number is SC 16338.

      Eric R. Brown, in support of the petition.
    Decided June 29, 2000
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 490 (AC 18222), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the arbitrators’ award should be vacated on the ground of an important and clearly defined public policy?”


text:
    STATE OF CONNECTICUT v. MICHAEL CRAMER

      Hubert J. Santos and Hope C. Seely, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 57 Conn. App. 452 (AC 18443), is denied.

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

Carolyn K. Longstreth, senior assistant state’s attorney, in opposition.

Decided June 29, 2000


text:
    BARBARA EZIKOVICH v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.

      Winona W. Zimberlin, in support of the petition.

      Edward F. Osswalt, assistant attorney general, and Charles Krich, in opposition.
    Decided June 29, 2000
   The plaintiffs petition for certification for appeal from the Appellate Court, 57 Conn. App. 767 (AC 18470), is denied.