Barry v. Posi-Seal Intern., Inc., POSI-SEAL

CourtAppellate Court of Connecticut
Writing for the CourtLANDAU; In this opinion, SPEAR; FOTI
Citation647 A.2d 1031,36 Conn.App. 1
Parties, 9 IER Cases 1640 James BARRY v.INTERNATIONAL, INC.
Docket NumberNo. 12101,POSI-SEAL
Decision Date13 September 1994

Page 1031

647 A.2d 1031
36 Conn.App. 1, 9 IER Cases 1640
James BARRY
v.
POSI-SEAL INTERNATIONAL, INC.
No. 12101.
Appellate Court of Connecticut.
Argued Jan. 12, 1994.
Decided Sept. 13, 1994.

Page 1033

[36 Conn.App. 2] Mark R. Kravitz, with whom were Ian E. Bjorkman and, on the brief, Bonnie L. Patten, New Haven, for appellant-appellee (defendant).

Harry E. Calmar, with whom, on the brief, were Thomas B. Wilson, New London, and Helen Kemp, Legal Intern, for appellee-appellant (plaintiff).

Before FOTI, LANDAU and SPEAR, JJ.

LANDAU, Judge.

In this action for wrongful termination of employment, the defendant, Posi-Seal International, Inc. (Posi-Seal), appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, James Barry. The defendant challenges the trial court's refusal to set aside the verdict on the following bases: (1) that there was insufficient evidence that an employment contract was created between the parties; (2) that, because an employment contract did not exist, the finding of a breach of an implied covenant of good faith and fair dealing was improper; (3) that front pay is not a proper measure of contract damages, [36 Conn.App. 3] and, if it is a proper measure, there was insufficient evidence to support the front pay award; and (4) that there was insufficient evidence to support the award of punitive damages. The plaintiff has filed a cross appeal claiming that the trial court improperly (1) set aside the awards for intentional infliction of emotional distress and negligent misrepresentation, and (2) reduced the punitive damage award.

The jury reasonably could have found the following facts. The plaintiff was employed by the defendant for more than ten years as an assembler of specialty valves. On August 4, 1988, the plaintiff walked by an area where a valve test was being conducted. John Burdick, an inspector for the defendant, was witnessing the test. The plaintiff had firsthand knowledge of the effectiveness of the valve being tested. The plaintiff remarked to Burdick that the valve was "fucking junk" and that he was wasting his time testing it. Only after making his comment did the plaintiff notice that Jim Eckhardt, an inspector representing a Posi-Seal customer, was present. The next day, the plaintiff's employment was terminated because of the disparaging remark he had made about a company made valve in the presence of a customer representative. He received no prior notice of this act, nor was he afforded any other disciplinary measures in accordance with the defendant's personnel manual.

The plaintiff commenced this action for damages for wrongful termination of employment alleging breach of an implied or express employment contract, breach of implied covenant of good faith and fair dealing, intentional infliction of emotional distress and negligent misrepresentation. At trial, the jury answered several special interrogatories and returned a verdict finding the issues in favor of the plaintiff. The finding that an implied employment contract existed between the parties was based on remarks made by Eugene Bisbee and [36 Conn.App. 4] the express language of the employee manual. Bisbee, the vice president and general manager of Posi-Seal, would walk, on occasion, through the Posi-Seal plant and discuss with employees the financial prospects of the company in an effort to boost morale. Because it was common knowledge that the plant was experiencing severe financial pressures, he tried to dispel the perception that the company was considering closing the plant. On one occasion, the plaintiff inquired as to his job

Page 1034

security and Bisbee responded that "if you do your job, you do your work, you're going to have a job here. If we can make this place run and minimize the money loss--I mean, you do your job, you're going to have a job here."

The defendant distributed a personnel policy manual to its employees describing company policy on disciplinary procedures. It states that "[i]t is policy of the Company that any employee who violates any of the rules or procedures of the Company shall be subject to disciplinary action as set forth below." The manual then sets forth procedures to respond to first, second and third violations by employees of the company rules and regulations.

The jury awarded the plaintiff the following damages: $52,275 back pay; $271,775 future wage loss-impairment of earning capacity; $42,315 infliction of emotional distress and negligent misrepresentation; and $50,000 punitive damages. The defendant moved to set aside the verdict. After a hearing on the motion, the trial court granted the motion to set aside the verdict as to intentional infliction of emotional distress and negligent misrepresentation, and denied it as to the remaining counts. 1 The defendant filed this appeal, and the plaintiff filed a cross appeal.

[36 Conn.App. 5] I

THE DEFENDANT'S APPEAL

A

The defendant first claims that there was insufficient evidence to support the finding that the parties had an implied agreement whereby the plaintiff's employment could not be terminated except for cause following appropriate disciplinary procedures. The defendant contends that Bisbee's statements and the language of the personnel manual do not constitute sufficient evidence to establish an implied agreement between the parties, and thus, the issue should not have been submitted to the jury. The defendant seeks a judgment in its favor on this claim. We are unpersuaded.

"A contract implied in fact, like an express contract, depends on actual agreement. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n. 2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957)." (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on his wrongful termination claim, "which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause [following progressive disciplinary measures]. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, at 212 n. 2, 520 A.2d 217; Therrien v. Safeguard Mfg. Co., supra, at 94-95, 429 A.2d 808." (Internal quotation marks omitted.) Id., at 112, 429 A.2d 808.

[36 Conn.App. 6] "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983) ]; Katsetos v. Nolan, [170 Conn. 637, 656, 368 A.2d 172 (1976) ]. This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. Birgel

Page 1035

v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).... It is the function of this court to determine whether the trial court abused its discretion in denying [a party's] motion. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

"Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. As an inference of fact, it is not reversible [error] unless the [trier of fact] could not reasonably have arrived at the conclusion that it reached. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). This process of inference is peculiarly a jury function, the raison d'etre of the jury system. Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957)." (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., supra, 208 Conn. at 112-13, 544 A.2d 170.

The defendant contends that the statements Bisbee made to the plaintiff were expressions of expectations [36 Conn.App. 7] about the company's future, and efforts to boost morale among employees. It claims that the comments were not manifestations of a present intention on the part of the company to undertake contractual obligations to the plaintiff. "Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role." Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); see Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). Given the defendant's financial situation, it was not unreasonable for the jury to conclude that Bisbee's encouraging comments intended to confer job security in combination with the manual provisions, gave rise to an implied employment contract.

The defendant argues that the provisions of the personnel manual could not form the basis of an implied agreement between the parties because the plaintiff did not rely on the contents of the manual. Our Supreme Court addressed this claim in Coelho v. Posi-Seal International, Inc., supra, 208 Conn. at 118, 544 A.2d 170. Noting that in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987), overruled on other grounds in Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993), the court...

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23 practice notes
  • Burnham v. Karl and Gelb, P.C., No. 17022
    • United States
    • Appellate Court of Connecticut
    • September 15, 1998
    ...[50 Conn.App. 391] information. Id., at 218, 520 A.2d 217." (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 20, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 The facts on which the plaintiff relies to suppo......
  • Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 15146
    • United States
    • Supreme Court of Connecticut
    • July 4, 1995
    ...specifically as an alternative to reinstatement in actions for employment discrimination. See Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 10-17, 647 A.2d 1031 Page 106 Whatever the origins of damages for future lost wages, however, we are persuaded that such damages can be award......
  • Maselli v. Reg'l Sch. Dist. No. 10, AC 41809
    • United States
    • Appellate Court of Connecticut
    • July 7, 2020
    ...embarrassment, humiliation and hurt feelings do not constitute severe emotional distress. See Barry v. Posi-Seal International, Inc ., 36 Conn. App. 1, 20 n.17, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995) ; Stapleton v. Monro Muffler, Inc .,......
  • State v. Mann, (AC 27779) (Conn. App. 3/2/2010), (AC 27779).
    • United States
    • Appellate Court of Connecticut
    • March 2, 2010
    ...court's instructions concerning his credibility, thereby, preserving his claim for appeal.3 See Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 8, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995). He now challenges the propriety of the i......
  • Request a trial to view additional results
23 cases
  • Burnham v. Karl and Gelb, P.C., No. 17022
    • United States
    • Appellate Court of Connecticut
    • September 15, 1998
    ...[50 Conn.App. 391] information. Id., at 218, 520 A.2d 217." (Internal quotation marks omitted.) Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 20, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 The facts on which the plaintiff relies to suppo......
  • Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 15146
    • United States
    • Supreme Court of Connecticut
    • July 4, 1995
    ...specifically as an alternative to reinstatement in actions for employment discrimination. See Barry v. Posi-Seal International, Inc., 36 Conn.App. 1, 10-17, 647 A.2d 1031 Page 106 Whatever the origins of damages for future lost wages, however, we are persuaded that such damages can be award......
  • Maselli v. Reg'l Sch. Dist. No. 10, AC 41809
    • United States
    • Appellate Court of Connecticut
    • July 7, 2020
    ...embarrassment, humiliation and hurt feelings do not constitute severe emotional distress. See Barry v. Posi-Seal International, Inc ., 36 Conn. App. 1, 20 n.17, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995) ; Stapleton v. Monro Muffler, Inc .,......
  • State v. Mann, (AC 27779) (Conn. App. 3/2/2010), (AC 27779).
    • United States
    • Appellate Court of Connecticut
    • March 2, 2010
    ...court's instructions concerning his credibility, thereby, preserving his claim for appeal.3 See Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 8, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995). He now challenges the propriety of the i......
  • Request a trial to view additional results

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