Biller Associates v. Rte. 156 Realty Co.

• Decision Date: 23 February 1999
• Docket Number: (AC 16708)
• Citation: 52 Conn. App. 18,725 A.2d 398
• Parties: BILLER ASSOCIATES v. RTE. 156 REALTY COMPANY
• Court: Connecticut Court of Appeals

52 Conn. App. 18

725 A.2d 398

BILLER ASSOCIATES v. RTE. 156 REALTY COMPANY

(AC 16708)

Appellate Court of Connecticut.

Argued November 2, 1998.

Officially released February 23, 1999.

Lavery, Hennessy and Sullivan, JS. Victor J. Dowling, with whom were Paige J. Everin, and, on the brief, Victor J. Dowling, Jr., for the appellant-appellee (defendant).

David B. Rozwaski, with whom was Jon D. Biller, for the appellee-appellant (plaintiff).

Opinion

LAVERY, J.

The defendant, Rte. 156 Realty Company, appeals from the judgment of the trial court in favor of the plaintiff, Biller Associates, a licensed public adjusting firm. On appeal, the defendant claims that the trial court (1) failed to respond to its claim that, as a matter of law, the employment contract it signed with the plaintiff was unenforceable, (2) misinterpreted the phrase "or otherwise recovered" in § 38-72 (h)-6, now § 38a-788-6, of the Regulations of Connecticut State Agencies, and (3) improperly determined that the plaintiff was entitled to a percentage of the defendant's settlement from a negligence action involving a third party. We agree with the defendant that the employment contract was unenforceable and, therefore, reverse the judgment of the trial court. Because we conclude that, as a matter of law, the employment contract was unenforceable, we need not address the defendant's remaining two claims and the plaintiff's cross appeal.

The following facts are relevant to a resolution of this appeal. The plaintiff was at all relevant times a licensed public adjusting firm. The defendant was the owner of premises located at 435 Shore Road in Old Lyme. The defendant leased its building to Robert Gaines, who operated a restaurant on the premises. Paragraph five of the lease agreement required Gaines to obtain replacement fire and extended insurance coverage in an amount not less than $250,000. Using an independent insurance broker, Pequot Insurance Agency (Pequot), Gaines obtained insurance coverage for the premises in the amount of $425,000 from the Hermitage Insurance Company (Hermitage). Contrary to the terms of the lease agreement, the Hermitage insurance policy erroneously listed Gaines as the insured and owner of the property. Before this insurance policy could be reformed to reflect that the defendant was the insured and owner, the premises were destroyed by fire on July 1, 1988.

On August 22, 1988, the defendant signed an employment contract with the plaintiff, authorizing the plaintiff to adjust the loss on its behalf. This contract is the subject of the present action. The plaintiff admitted that when both parties signed this contract, it was fully aware that the defendant was not named as an insured party under the Hermitage insurance policy. The defendant claims that it signed this contract with the expectation that efforts to reform the Hermitage insurance policy would be successful, thereby naming it as the owner and insured of the premises.

Thereafter, the defendant retained legal counsel and initiated a separate lawsuit against Pequot, Hermitage and Continental Insurance Agency (Continental), the Connecticut agent for Hermitage. The defendant sought, inter alia, to reform the Hermitage insurance policy and claimed that it was not named as an insured party under this policy due to Pequot's negligence. The defendant was unable to reform the Hermitage insurance policy, and eventually settled its lawsuit with Pequot, Hermitage and Continental.

Because the defendant refused to provide the plaintiff with a percentage of the settlement, the plaintiff initiated this action, claiming that, pursuant to the terms of the August 22, 1988 employment contract, it was entitled to 10 percent of the defendant's recovery. In the alternative, the plaintiff claimed that it was entitled to recover under the doctrine of unjust enrichment.

On October 22, 1996, the trial court rendered judgment for the plaintiff in the amount of $17,500 plus costs, which constituted 10 percent of the defendant's net recovery. In its memorandum of decision, the trial court stated that "[t]he defendant did not recover under the [Hermitage] fire insurance policy because attempts at reforming that policy to add it as an insured were not successful." In response to the defendant's claim that the employment contract was unenforceable, the trial court concluded that "[t]his claim appears to have been abandoned [by the defendant] in the posttrial brief." The trial court awarded the plaintiff 10 percent of the defendant's net recovery because the employment contract provided that the plaintiff was entitled to 10 percent of "the amount of the loss when adjusted with the Insurance Companies or otherwise recovered." The trial court concluded "that the term `otherwise recovered' in this employment contract leaves no room for ambiguity and its plain meaning includes all sums `received' from an insurance company in recompense for a loss." Additionally, the trial court held that even if the plaintiff could not recover pursuant to the contract, it was entitled to $17,500 in quantum meruit.

On November 5, 1996, the defendant filed a motion to reargue, and the trial court denied the defendant's motion on November 26, 1996. This appeal followed. Additional facts will be set forth where necessary to a resolution of this appeal.

I

The defendant claims that the trial court failed to respond to its claim that, pursuant to General Statutes (Rev. to 1987) § 38-69 (now § 38a-702) and regulations enacted by the insurance commissioner in effect at the time the contract was executed,¹ the employment contract was unenforceable because, as a condition precedent to its enforceability, the defendant must be named as an insured party under the Hermitage insurance policy sought to be adjusted by the plaintiff. We agree with the defendant and, therefore, reverse the judgment of the trial court.

A

As a threshold matter, we must determine whether the defendant properly raised and preserved this claim for review. The plaintiff argues that this claim "was not raised by the defendant-appellant in its trial brief and has not been raised on this appeal and has therefore been abandoned." In its memorandum of decision, the trial court stated that "[t]his claim appears to have been abandoned in the posttrial brief." We disagree.

Practice Book § 5-2, formerly § 285A, provides that "[a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party's closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question." See Cottiero v. Ifkovic, 35 Conn. App. 682, 688, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994).

On October 2, 1996, the defendant raised this claim on the record before the trial court.² On October 2, 1996, the trial court authorized both parties to submit posttrial briefs. In its posttrial brief, dated October 21, 1996, the defendant claimed: "Because Rte. 156 Realty Company was not a named insured under the fire insurance policy of Hermitage Insurance Company's Policy #100131 at the time of the signing of the employment contract on August 22, 1988, and because Rte. 156 Realty Company failed, after exhausting every effort to reform said Policy #100131 to include it as a named insured, it could not be a party to an employment contract with a public adjuster as the same is defined in the State's statutes and regulations thereunder." Although this claim was perhaps less than clear when raised on the record, we conclude that the defendant satisfied Practice Book § 5-2 by distinctly raising this claim in its posttrial brief.³ See City Savings Bank of Bridgeport v. Dessoff, 3 Conn. App. 644, 647, 491 A.2d 424, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985).

Practice Book § 64-1 (a), formerly § 4059, provides in relevant part that the trial court's decision "shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor...."In its memorandum of decision, the trial court did not address the defendant's claim because it improperly concluded that "[t]his claim appears to have been abandoned in the posttrial brief." In its motion for articulation, the defendant requested that "[t]he trial court specifically and directly address [its] consistent and persistent claim, as matter of law, that under § 38-69 of the Connecticut General Statutes ... the threshold question that must be addressed is whether the defendant was a named insured under any policy of insurance covering the loss or damage by fire or other hazard policy, and failing to find that the defendant was so insured, any contract by a public adjuster is outside the scope of authority granted under the General Statutes." In response, the trial court stated that "[t]he defendant has made this same argument before and the court has already addressed it in its memorandum of decision." On April 11, 1997, the defendant filed a motion for review of its motion for articulation. On May 14, 1997, we granted the defendant's motion, but denied the relief requested.

Our decision in this case, which reverses our ruling on the defendant's motion for review, would ordinarily mandate that we remand this case for the trial court to decide the defendant's claim. We decline to do so for two reasons. First, the defendant's claim presents a question of law. See City Savings Bank of Bridgeport v. Dessoff, supra, 3 Conn. App. 648. Second, "`[u]nder circumstances where the record presents the entire proceedings before the trial court, the question is essentially one of law, and we are in no different position than we would be in had ...