Brunswick v. Safeco Ins. Co.

• Citation: 711 A.2d 1202,48 Conn.App. 699
• Decision Date: 19 May 1998
• Docket Number: No. 17001,17001
• Court: Appellate Court of Connecticut
• Parties: Max F. BRUNSWICK v. SAFECO INSURANCE COMPANY.

Page 1202

711 A.2d 1202

48 Conn.App. 699

Max F. BRUNSWICK v. SAFECO INSURANCE COMPANY.

No. 17001.

Appellate Court of Connecticut.

Argued Feb. 19, 1998.

Decided May 19, 1998.

David M. Reilly, New Haven, for appellant (plaintiff).

Roger J. Frechette, with whom, on the brief, was Franz P. Frechette, New Haven, for appellee (defendant).

Before LAVERY, SULLIVAN and DALY, JJ.

LAVERY, Judge.

The plaintiff, Max F. Brunswick, appeals from the summary judgment rendered by the trial court in favor of the defendant, Safeco Insurance Company. The issues raised on appeal concern whether an attorney can bring a cause of action against an insurance carrier that settled a personal injury action directly with the attorney's former client. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff is an attorney engaged in the practice of law in New Haven. At some time prior to 1991, the plaintiff undertook to represent Mary Osborne for injuries she sustained in an automobile accident. The plaintiff claims that he met with Osborne's daughter at a time when Osborne was incapacitated ¹ and gave the daughter a copy of his retainer agreement, which included the plaintiff's name but was not signed by him. The plaintiff subsequently had a telephone conversation with Osborne during which he asked Osborne to sign and return the retainer agreement. Osborne neither signed nor returned the agreement to the plaintiff.

Nonetheless, the plaintiff proceeded with his representation of Osborne by obtaining copies of her relevant medical records, issuing letters of protection to her health care providers and others and commencing suit on her behalf against the driver of the other vehicle, who was insured by the defendant. During the pendency of the personal injury suit, Osborne informed the plaintiff by letter dated May 8, 1991, that she no longer wanted him to represent her in this matter because she was going to negotiate a settlement directly with the defendant. ² On May 28, 1991, Osborne filed her pro se appearance in lieu of the plaintiff's in the personal injury action, but failed to provide notice of her appearance in accordance with the rules of practice. In early June, 1991, the plaintiff appeared at short calendar on behalf of Osborne and entered a discovery agreement reached with counsel retained by the defendant to represent its insured. Although several of the defendant's agents knew of the plaintiff's interest as Osborne's attorney, the defendant negotiated a settlement of the personal injury action directly with Osborne in October, 1991. The plaintiff was not given notice of the settlement, payment or withdrawal of the action.

On August 3, 1992, the plaintiff commenced the action before this court by serving the defendant with a six count complaint. The plaintiff alleged that (1) he has a common law lien on the recovery in the amount of his compensation, (2) the defendant tortiously interfered with his contractual rights, (3) the defendant's actions violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (4) the defendant violated the regulations of the insurance commission, ³ (5) the defendant violated the plaintiff's property rights under 42 U.S.C. § 1983 and (6) the defendant's reckless acts impaired the rights of those given letters of protection by the plaintiff. As special defenses to the plaintiff's cause of action, the defendant alleged that the plaintiff failed to comply with General Statutes § 52-251c ⁴ and with Rule 1.5(c) ⁵ of the Rules of Professional Conduct (effective October 1, 1986). ⁶

Between July, 1993, and October, 1996, the parties filed five motions for summary judgment and also filed corresponding objections with affidavits and other evidence. ⁷ On February 26, 1997, the trial court simultaneously granted the defendant's third and fourth motions for summary judgment. ⁸ The plaintiff appealed.

On appeal, the plaintiff claims that the trial court improperly granted summary judgment because (1) the defendant did not have standing to raise § 52-251c and Rule 1.5(c) in defense of the plaintiff's claims, (2) a lawyer who performs services for a client is not barred from recovery for services rendered where the attorney has issued his written commitment to abide by the regulations of § 52-251c and Rule 1.5(c) even though the commitment is not signed, (3) the plaintiff is protected by the rule that a party may not repudiate her bargain in bad faith to reap the benefit of a statute, (4) an action for interference with contractual relations or business relations may be brought against a tortfeasor even though an enforceable contract did not exist, and (5) the plaintiff's cause of action was alleged, in part, pursuant to General Statutes § 42-110b, ⁹ not General Statutes § 38a-816 (6), which is part of the Connecticut Unfair Insurance Practices Act (CUIPA).

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). "The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 384, now Practice Book (1998 Rev.) § 17-49. A "material fact" is a fact that will make a difference in the result of the case. See Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment "has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Pursuant to Practice Book §§ 380 and 381, now Practice Book (1998 Rev.) §§ 17-45 and 17-46, the party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A defendant's motion for summary judgment "is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).

I

The plaintiff's first claim is that the trial court improperly determined that the defendant has standing to assert § 52-251c and Rule 1.5(c) as special defenses because it is not within the class that the statute and rule were intended to protect. The defendant's special defenses are at the heart of its motions for summary judgment because they attack the plaintiff's failure to secure a written fee agreement when he undertook to represent Osborne. This failure is fatal to the plaintiff's claims. See Alan E. Silver, P.C. v. Jacobs, 43 Conn.App. 184, 188-89, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996).

Our law is clear. When an attorney undertakes to represent a client in a personal injury action, the attorney and the client "may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct ... that the fee for the attorney shall be paid" contingent upon certain events. See General Statutes § 52-251c (a). The applicable rule of professional conduct provides, "a contingent fee agreement shall be in writing." Rule 1.5(c) of the Rules of Professional Conduct. The use of the word shall means that the performance of the statutory requirement is mandatory rather than permissive. See Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986).

Section 52-251c "was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees." Berry v. Loiseau, 223 Conn. 786, 830 n. 22, 614 A.2d 414 (1992). "Where a law is passed for the protection of the public, we will not undermine the remedial purposes of the statute...." Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn.App. at 190, 682 A.2d 551. Although Silver makes it clear that the plaintiff could not enforce his claim for fees against Osborne because there was no written agreement, the plaintiff argues that the defendant is not within the class to be protected by § 52-251c and for that reason cannot invoke its protection. We disagree.

"In order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute.... Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Berchtold v. Maggi, 191 Conn. 266, 274-75, 464 A.2d 1 (1983). Here, the defendant asserts § 52-251c as a special defense; it does not attempt to use the statute because it has sustained an injury. The plaintiff is the party claiming the injury. Section 52-251c placed an affirmative duty on the plaintiff; he cannot come forward now seeking justice when he failed to follow the law.

Section § 52-251c protects clients from excessive legal fees by regulating the attorney-client relationship. See Berry v. Loiseau, supra, 223 Conn. at 830 n. 22, 614 A.2d 414. The statute permits the attorney and client to enter into a written contract to govern the attorney's fee. A contract is binding on all parties to the agreement....