Fishman v. Middlesex Mut. Assur. Co.

• Decision Date: 25 June 1985
• Docket Number: No. 2218,2218
• Citation: 4 Conn.App. 339,494 A.2d 606
• Parties: Claire FISHMAN v. MIDDLESEX MUTUAL ASSURANCE COMPANY.
• Court: Connecticut Court of Appeals

Page 606

494 A.2d 606

4 Conn.App. 339

Claire FISHMAN v. MIDDLESEX MUTUAL ASSURANCE COMPANY.

No. 2218.

Appellate Court of Connecticut.

Argued March 12, 1985.

Decided June 25, 1985.

[4 Conn.App. 340] Bruce L. Levin, Milford, with whom, on the brief, was Serge G. Mihlay, Bridgeport, for appellant-appellee (defendant).

Leo Gold, Stamford, with whom, on the brief, was Isadore M. Mackler, Stamford, for appellee-appellant (plaintiff).

Before [4 Conn.App. 339] DUPONT, C.P.J., and HULL and BORDEN, JJ.

[4 Conn.App. 340] BORDEN, Judge.

In this case, we are called upon to interpret General Statutes § 52-410, which provides a judicial mechanism for a party to an arbitration agreement to compel the other party to proceed with arbitration. We are also called upon, ultimately, to decide whether the truncated procedure provided by that statute violates our constitutional principle of the separation of powers.

The plaintiff is the insured under a homeowner's policy issued by the defendant. By a complaint dated December 20, 1982, the plaintiff alleged that she is an insured of the defendant, that the policy contains an [4 Conn.App. 341] arbitration provision, a copy of which she attached to the complaint, ¹ and that the

defendant has refused to arbitrate. She sought an order directing the defendant to proceed with arbitration. The complaint was served on the defendant pursuant to a summons directing it to appear on January 18, 1983. Simultaneously, the plaintiff served the defendant with another summons and complaint, returnable on January 23, 1983, for damages under the policy. ²

On February 22, 1983, the defendant moved to dismiss this action on the grounds, inter alia, that it is a civil action requiring a recognizance which was lacking, and that the pendency of the second action, for damages, rendered this action dismissible. On April 7, 1983, the court, Geen, J., denied the motion. On April 11, 1983, and April 13, 1983, the defendant filed requests to revise the complaint, seeking to require the plaintiff to make her complaint more specific as to the nature, date, cause and amount of the loss, the date of the plaintiff's demand for arbitration, and the date of the defendant's alleged refusal to arbitrate. On April 11, 1983, the defendant also filed notices of interrogatories[4 Conn.App. 342] and of requests for production. The plaintiff objected to the requests to revise and to the defendant's discovery requests. The court did not rule on the plaintiff's objections and the plaintiff did not comply with the defendant's requests.

On April 18, 1983, the plaintiff filed a motion for an order to proceed with arbitration, which invoked General Statutes § 52-410, and which sought a hearing on her complaint and an order directing the defendant to proceed with arbitration. The defendant objected.

The plaintiff's motion was heard on July 11, 1983. At the hearing, the plaintiff offered no evidence, but the defendant conceded the contents of the insurance policy between the parties, that it contained the provision at issue; see footnote 1, supra; and that the defendant opposed an order of arbitration. The defendant also disputed coverage.

The court, Ford, J., rendered judgment granting the plaintiff's motion, and ordered the defendant to proceed with arbitration, including the disputed issue of coverage. The defendant appealed, and the plaintiff cross appealed.

One of the grounds of the defendant's appeal coincides with the sole ground of the plaintiff's cross appeal, namely, that the court erred in submitting the question of coverage to arbitration. The parties differ, however, on the reasons for this error and, as a result, differ on the consequences of it. The defendant claims that the court should have decided the coverage question; the plaintiff claims that the defendant waived that question by not presenting it to the court in a timely and appropriate manner.

We agree, for the reasons offered by the defendant, that the court erred by ordering that the issue of coverage be decided by arbitration. We, therefore, find error [4 Conn.App. 343] on both the appeal and cross appeal as to that issue. As to the other grounds of the defendant's appeal, we find no error.

I

The plaintiff's complaint was brought pursuant to General Statutes § 52-410. ³

That statute provides, in general terms, that a party seeking to compel another party to comply with an arbitration agreement may file a concise complaint with the court. If the defendant does not file an answer within five days of the return day, the parties are considered to be at issue on the complaint, and the court shall hear and dispose of the matter with the least possible delay. The defendant's appeal raises several issues regarding the application of General Statutes § 52-410 to this case, culminating in its claim that the statute unconstitutionally intrudes on the judicial power. We consider the defendant's claims in the inverse order of their seriousness

[4 Conn.App. 344] II

The defendant first argues that the court erred by refusing to dismiss the complaint, on the basis of the lack of a recognizance. This argument is premised on the contention that the plaintiff's complaint is a "civil action" which requires a recognizance pursuant to Practice Book §§ 51, 52 and 53. We disagree.

Arbitration proceedings have generally not been viewed as encompassed within the concept of civil actions. E.g., Dayco Corporation v. Fred T. Roberts & Co., 192 Conn. 497, 503, 472 A.2d 780 (1984) (arbitration proceedings are not civil actions for purposes of suit, attachment and service of process on partnerships pursuant to General Statutes §§ 52-112 and 52-57[d]; Waterbury v. Waterbury Police Union, 176 Conn. 401, 408, 407 A.2d 1013 (1979) (applications to confirm, modify or vacate arbitration awards are not civil actions for purposes of General Statutes title 52); Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn.Sup. 76, 86, 197 A.2d 83 (1963) (arbitration proceeding is not an action for purposes of statute of limitation). These decisions indicate that the determination of whether an arbitration proceeding is a civil action turns on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose. "[T]he word 'action' has no precise meaning and the scope of proceedings which will be included within the term ... depends upon the nature and purpose of the particular statute in question." Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940). What the legislature may have intended to be a civil action for some purposes may not be a civil action for others. Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., supra; see Boltuch v. Rainaud, 137 Conn. 298, 301, 77 A.2d 94 (1950).

[4 Conn.App. 345] The purposes for which arbitration was created indicate that an application to compel arbitration is not a civil action in the context of the requirements for a recognizance. Arbitration proceedings, including court proceedings to compel arbitration, are creatures of statute in Connecticut and are not common law actions. See General Statutes §§ 52-408 through 52-424; Skidmore, Owings & Merrill v. Connecticut

General Life Ins. Co., supra, 25 Conn.Sup. at 84, 197 A.2d 83; see also 5 Am.Jur.2d, Arbitration and Award § 6; see generally Sturges, Commercial Arbitration and Awards. These statutes are enacted to create "an arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to the established tribunals of justice; and is intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation." In re Curtis-Castle Arbitration, 64 Conn. 501, 511, 30 A. 769 (1894); Dayco Corporation v. Fred T. Roberts & Co., supra; Boltuch v. Rainaud, supra; Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., supra

In various situations, such as compelling arbitration or correcting an arbitration award, parties to arbitration proceedings are permitted to seek the assistance of the court. Boltuch v. Rainaud, supra. Resort to the court in these situations, however, does not alter the form of the proceedings from one involving arbitration into a full-fledged civil action. The policies of avoiding the formalities, expense and delay of ordinary litigation still attach. To the extent that arbitration proceedings are viewed as requiring all the formal trappings of civil actions, those policies would be frustrated.

This is especially true where an application to compel arbitration is involved. General Statutes § 52-410 allows a party to apply to the Superior Court for an order compelling a recalcitrant party to a written agreement for arbitration to proceed with arbitration. [4 Conn.App. 346] Subsection (c) of this statute provides that "the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay...." See footnote 3, supra. This language demonstrates that the legislature, like the courts, "favor[s] arbitration as a means of settling differences and expediting the resolution of disputes." Trumbull v. Trumbull Police Local 1745, 1 Conn.App. 207, 211, 470 A.2d 1219 (1984); see also Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981). These means would be thwarted if a party, who contractually agreed to the arbitration but refuses to proceed with it, is able to slow down this favored process not only by requiring the other party to seek the court's intervention, but also by insisting on all the procedural formalities, delays, and costs of an ordinary civil action. Although a recognizance for costs is important to ensure diligent prosecution and is required within a writ of civil process in some other proceedings which are not considered civil actions; Sheehan v. Zoning...