Krausman v. Liberty Mut. Ins. Co.

• Decision Date: 11 February 2020
• Docket Number: AC 42240
• Citation: 195 Conn.App. 682,227 A.3d 91
• Parties: Donna KRAUSMAN v. LIBERTY MUTUAL INSURANCE COMPANY
• Court: Connecticut Court of Appeals

195 Conn.App. 682

227 A.3d 91

Donna KRAUSMAN

v.LIBERTY MUTUAL INSURANCE COMPANY

AC 42240

Appellate Court of Connecticut.

Argued November 19, 2019

Officially released February 11, 2020

Alan Scott Pickel, with whom, on the brief, was Steven A. Landis, Stamford, for the appellant (plaintiff).

Patrick T. Uiterwyk, with whom, on the brief, was Kevin P. Polansky, for the appellee (defendant).

Keller, Prescott and Bishop, Js.

PRESCOTT, J.

The plaintiff, Donna Krausman, filed this interlocutory appeal from the trial court's denial of her motion for an order compelling the defendant, Liberty Mutual Insurance Company, to respond to interrogatories that she served pursuant to General Statutes § 52-351b.¹ The plaintiff claims on appeal that the defendant was required by statute to answer the interrogatories and that the court improperly failed, as a matter of law, to grant her motion to compel. The defendant, in addition to disputing the merits of the plaintiff's claim, argues that the appeal should be dismissed for lack of a final judgment.² We agree with the defendant that the court's ruling was an interlocutory discovery order in an ongoing civil action that is not immediately appealable because it neither terminated a separate and distinct proceeding nor deprived the plaintiff of a presently held statutory or constitutional right that would be irretrievably lost in the absence of immediate appellate review. See State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983) ; see also Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co ., 279 Conn. 220, 226–27, 901 A.2d 1164 (2006). Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

The record reveals the following facts and procedural history. In April, 2015, the plaintiff was involved in a motor vehicle accident in which her vehicle collided with a vehicle operated by a third party, Anne Neilson. After exhausting the limits of Neilson's automobile liability policy, the plaintiff, on January 12, 2017, commenced the underlying action to recover, among other things, underinsured motorist benefits from the defendant, her own automobile liability insurer. The operative amended complaint contained three counts. Count one alleged that the parties were "unable to agree as to the amount of damages to which the plaintiff is entitled" under the underinsured motorist provisions of her automobile liability policy issued by the defendant. Count two alleged that the defendant had engaged in unfair and deceptive insurance practices, including misrepresenting the benefits payable to the plaintiff, in violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. Count three alleged that the same conduct violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On April 17, 2017, the defendant filed a motion, pursuant to General Statutes § 52-205, seeking to bifurcate the plaintiff's underinsured motorist claim from her CUIPA and CUTPA claims, and to adjudicate the underinsured motorist claim prior to hearing the CUIPA and CUTPA claims. On June 24, 2017, the court, Jacobs , J ., granted the motion to bifurcate. The court subsequently referred count one of the complaint, the underinsured motorist claim, to an arbitrator pursuant to General Statutes § 52-549u.³

On January 17, 2018, the arbitrator, Attorney John R. Downey, issued a decision finding for the plaintiff on her underinsured motorist claim and awarding her $19,500 in damages. On February 23, 2018, the plaintiff filed a motion asking the court to render judgment with respect to count one of the complaint in accordance with the arbitrator's decision. In the motion, the plaintiff asserted that the defendant had failed to demand a trial de novo pursuant to General Statutes § 52-549z (a).⁴ On March 12, 2018, the court granted the plaintiff's motion for judgment.⁵

Thereafter, pursuant to § 52-351b, the plaintiff served the defendant with interrogatories dated June 7, 2018, seeking discovery as to the defendant's assets. After the defendant failed to respond to the interrogatories within the thirty day period provided by statute, the plaintiff filed a motion for order of compliance pursuant to § 52-351b (c), asking the court to compel the defendant to respond to her interrogatories. The defendant filed an objection to the plaintiff's motion, arguing that it was not required to respond to the interrogatories because the court had not yet disposed of the remaining two counts of the complaint and the plaintiff must wait until a final judgment was rendered in the case before seeking postjudgment discovery pursuant to § 52-351b.

On October 5, 2018, following a hearing, the trial court, Hernandez , J ., issued orders sustaining the defendant's objection and denying the plaintiff's motion for an order of compliance. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly denied her motion for an order of compliance regarding her postjudgment interrogatories. In response, the defendant argues, inter alia, that the appeal should be dismissed for lack of subject matter jurisdiction because a final judgment has not yet been rendered in the underlying action. According to the defendant, the court's order denying the plaintiff's motion for compliance is an interlocutory discovery order that satisfies neither prong of the test set forth in State v. Curcio , supra, 191 Conn. at 31, 463 A.2d 566, for establishing whether an interlocutory order is final for purposes of appellate jurisdiction. The defendant argues that the plaintiff must wait to appeal until after the trial court has disposed of the remaining two counts of her complaint. In her reply brief, the plaintiff responds that the challenged order is a final judgment and that both prongs of the Curcio test are satisfied because the defendant's failure to seek a trial de novo with respect to the arbitration decision effectively terminated a separate and distinct proceeding with respect to the underinsured motorist claim and the court's order precludes her right to obtain the discovery she needs to execute on the judgment. We agree with the defendant.

Unless otherwise provided by law, the jurisdiction of our appellate courts is restricted to appeals from final judgments. See General Statutes §§ 51-197a and 52-263 ; Practice Book § 61-1 ; Cheryl Terry Enterprises, Ltd. v. Hartford , 262 Conn. 240, 245, 811 A.2d 1272 (2002). "The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear." (Internal quotation marks omitted.) Tyler v. Tyler , 151 Conn. App. 98, 103, 93 A.3d 1179 (2014). Accordingly, a final judgment issue is a threshold matter that must always be resolved prior to addressing the merits of an appeal. See State v. Curcio , supra, 191 Conn. at 30, 463 A.2d 566. Whether an appealable final judgment has occurred is a question of law over which our review is plenary. See, e.g., Hylton v. Gunter , 313 Conn. 472, 478, 97 A.3d 970 (2014).

It is axiomatic that "[a] judgment that disposes of only a part of a complaint is not a final judgment." Cheryl Terry Enterprises, Ltd. v. Hartford , supra, 262 Conn. at 246, 811 A.2d 1272. Accordingly, an appeal challenging an order issued during the pendency of a civil action ordinarily must wait until there has been a final disposition as to all counts of the underlying complaint. "Our rules of practice, however, set forth certain circumstances under which a party may appeal from a judgment disposing of less than all of the counts of a complaint. Thus, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties; see Practice Book § 61-3 ; or if the trial court makes a written determination regarding the significance of the issues resolved by the judgment and the chief justice or chief judge of the court having appellate jurisdiction concurs. See Practice Book § 61-4 (a)."⁶ (Footnote omitted.)

Cheryl Terry Enterprises, Ltd. v. Hartford , supra, at 246, 811 A.2d 1272. In the present case, neither of these exceptions is applicable.

The complaint in the underlying civil action contains three counts, all of which the plaintiff brought against the sole defendant. The court granted the defendant's motion to resolve count one before turning to the remaining counts of the complaint.⁷ Count one subsequently was referred to an arbitrator for resolution under the court's "nonbinding arbitration program." Allstate Ins. Co. v. Mottolese , 261 Conn. 521, 529, 803 A.2d 311 (2002) ; see also Practice Book §§ 23-61 through 23-66. The arbitrator issued a decision that became the judgment of the trial court with respect to count one after the defendant failed to make a claim for a trial de novo. See Practice Book § 23-66 (a). Even assuming without deciding that this fully resolved count one and that the defendant effectively has waived any challenge to the merits of the arbitrator's decision or its obligation to satisfy the judgment rendered on that count, the court nonetheless has not yet resolved the remaining two counts of the complaint. Because the judgment on count one does not dispose of all causes of action in the complaint brought by or against a particular party, the judgment rendered on count one is not final under Practice Book § 61-3. Instead, the judgment with respect to count one falls squarely within the type of judgment addressed in Practice Book § 61-4.

Our determination that the court's denial of the motion to compel compliance with the plaintiff's interrogatories was an interlocutory order does not end our inquiry into whether that ruling was immediately appealable. "In both criminal and civil cases ... we have...