Appellate Court Notes

by Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summaries.  Here, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted May 19, 2014

  • SC18961 - Robbins v. Physicians for Women's Health, LLC

The plaintiff filed this medical malpractice against a hospital, the doctor, the midwife, and the company (“PWH”) that bought the assets of the hospital after the death of a baby.  They successfully defeated PWH’s summary judgment attempt which argued that as an asset purchaser it could not be held liable for a claim against the defunct hospital.  The plaintiff asserted the “continuity of business” argument that successor liability attaches due to the new company having the same name, same location, same employees, same etc. [Note: this one of four exceptions to the rule that an asset purchaser is ordinarily not liable as a successor entity.]   

The plaintiff then settled with the doctor and midwife and the defunct hospital with a covenant not to sue but continued to sue PWH.  This decision, as a matter of first impression, reversed the Appellate Court and held that the covenant not to sue also barred any further claims against the alleged successor, PWH.  Since the plaintiff alleged PWH had successor liability…… and since a successor can only be held liable to the extent of its predecessor …… the covenant not to sue in favor of the predecessor also extinguishes any claim against the successor. There no longer is any liability to pass on.  [Note: The Plaintiff clearly tried to maintain the claim against PWH in its settlement by executing a “covenant not to sue” the hospital as opposed to tendering it a traditional release.  This decision discusses the difference between a covenant and a release but said it made no difference here.  They promised not to sue the predecessor so that amounts to a promise not to sue the (alleged) successor.]

  • AC35266 - U.S. Bank, N.A. v. Ugrin

Plaintiff moved to dismiss foreclosure action, alleging that the note had been altered, because it had been “specially endorsed” to the plaintiff after having been previously endorsed “in blank” by the original holder.  After the argument and briefing, the Trial Court summarily denied the motion to dismiss, asserting that the defendant had failed to present evidence that the plaintiff was not the proper holder of the note.  The defendant appealed, claiming that the Trial Court should have held a subsequent evidentiary hearing.  The Appellate Court noted that defense counsel had stated that the matter could be addressed sufficiently in the post-hearing briefs.  At no time did the Trial Court indicate it was definitely going to order a subsequent hearing or oral argument.   Even if there was error, a party cannot induce error by a court and later be heard to complain about that error.

The decision goes on to hold that whenever a note is endorsed in blank, any person in possession of the note is deemed a holder and entitled to enforce the instrument.  The defendant’s claim that the plaintiff should have put on evidence that the person who specially endorsed the note after it had been endorsed in blank, had authority as the holder, was deemed without merit.  It was the defendant’s burden to put on affirmative evidence that the note was not properly owned by those in possession.  The defendant cannot simply point to an endorsement in blank in the chain of title and surmise that there must have been fraud.  It is presumed that the holder has valid title, and the holder of a note endorsed in blank may thereafter convert it into a special endorsement by simply writing above the signature of the blank endorser the person to whom the instrument is now payable.  Such modification does not make it an “alteration” which is an unauthorized change of the instrument.  § C.G.S. 42(a)-3-407(a)(i).

  • AC35347 - Brown v. State Farm Fire & Casualty Co.

Plaintiff purchased a homeowner’s insurance policy, but missed a quarterly installment payment and ignored a cancellation notice effective April 6, 2006.  On April 21, 2006, the house burnt down, and the plaintiff claimed he found the cancellation notice for the first time in the debris from the fire.  The plaintiff picked up the notice and immediately mailed it with the missing payment the next day.  The insurer reinstated the policy the day after the fire.  [Oops – a day late].  Coverage was denied.  The plaintiff sued.  First, this decision refused to review the denial of the plaintiff’s motion for summary judgment.  The denial of a summary judgment is not a final, appealable order, especially when there has been a subsequent decision on the merits against the movant, as occurred here.

The Court then turned its attention to whether or not the carrier’s acceptance of the premium payment reinstated the policy retroactively.  The policy stated that missed payments could be caught up to reinstate the policy, but . . . “there is no coverage between the date and time of cancellation and the date and time of reinstatement.”  The decision notes that this issue is one of first impression in Connecticut, as to whether late premium payments should be applied retroactively, or whether they merely reinstate coverage prospectively.  The majority rule is that losses suffered between the time of the lapse of coverage and the reinstatement are not covered.  [In other words, reinstating a lapsed policy only covers you for losses going forward.] The reason for this rule is the loss is no longer fortuitous when one is trying to purchase or reinstate insurance after the loss.  Without this rule, one could allow their coverage to lapse and then upon suffering a loss, force their insurer to “buy the claim” by quickly making up the missed payments.  The Court decided to follow the majority rule noting that the decision is buttressed by the policy language in this case.  To rule otherwise would be contrary to public policy.

[An interesting footnote rejected the plaintiff’s contention that a supposed agent of the insurance company had agreed to orally modify the billing schedule.  The Court noted that any such oral modification would not bind the insurance company because the agreement specifically provided that any change of any provision in the policy must be in writing to be valid.  Such clear and unambiguous contract language is to be given effect according to its terms.  This is a refreshing statement in light of the numerous lower court decisions of late which have suggested that even that type of clause does not prevent an oral modification.]

Plaintiff sustained chest injuries when defendant’s truck hit her car.  Plaintiff sued, claiming five percent impairment of her body, post-concussion syndrome, post-traumatic stress disorder, anxiety, and memory loss.  After the defendant admitted liability, the jury awarded the damages of $370,000.  On appeal, the Court rejected the suggestion that only psychiatrists, not neurologists, can offer opinions about post-traumatic stress disorder.  Being a neurologist satisfies the requirement that the proponent establish reasonable expert qualifications as to the subject of their testimony.  Everything else goes to weight, not admissibility.  Even if the doctor was not qualified to diagnose post-traumatic stress disorder, that does not automatically preclude his testimony.  Nothing precludes a doctor from offering expert opinion concerning a condition that falls within the ambit of some other specialty, as opposed to a medical malpractice actions, which require the expert witness be a similar health care provider by statute.

  • AC34843 - State v. Solomon
  • AC35633 - Chief Disciplinary Counsel v. Rozbicki
  • AC35143 - We the People of Connecticut, Inc. v. Malloy

This case dismissed the plaintiff’s complaint challenging executive orders by the governor, allowing de facto union representation of state child and personal care attendants, because while the case was pending, the Legislature adopted equivalent Public Acts.

AC35752 - State v. Alex B.

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  

[View source.]


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Pullman & Comley, LLC

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