Mayer v. Biafore, Florek and O'Neill

Decision Date18 September 1997
Docket NumberNo. AC,AC
Citation45 Conn.App. 554,696 A.2d 1282
CourtConnecticut Court of Appeals
PartiesNorbert MAYER v. BIAFORE, FLOREK AND O'NEILL et al. 16156.

Douglas P. Mahoney, with whom, on the brief, was Robert R. Sheldon, Bridgeport, for appellant (plaintiff).

Karen K. Clark, with whom was Jennifer A. Osowiecki, Hartford, for appellees (defendants).

Before LANDAU, SCHALLER and SPEAR, JJ.

LANDAU, Judge.

The plaintiff, Norbert Mayer, appeals from the judgment that followed the trial court's granting of the defendants' motion to dismiss in this legal malpractice action. 1 On appeal, the plaintiff argues that the trial court improperly dismissed the action for lack of subject matter jurisdiction on the basis of ripeness. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. On March 30, 1989, the plaintiff was operating his motor vehicle when he was struck by a taxicab owned by Diene Bassirou and operated by Diop Ahmadou (tortfeasors). On May 9, 1989, the plaintiff retained the defendants to pursue a negligence action against the tortfeasors, claiming personal injuries. In May, 1994, the defendants settled the plaintiff's personal injury claim with the tortfeasors for $10,000, thereby exhausting the liability limits of the tortfeasors' insurance policy.

At the time of the accident, the plaintiff was insured under a personal automobile policy issued by Aetna Casualty and Surety Company (Aetna). The policy included provisions for uninsured-underinsured motorist coverage. Although the plaintiff requested underinsured motorist benefits from Aetna, to date, he has not filed suit against Aetna under the underinsured motorist provision in his insurance policy. 2

On August 30, 1995, the plaintiff commenced this legal malpractice action, sounding in negligence, against the defendants. In his complaint, the plaintiff alleged that he has lost his underinsured motorist claim for monetary damages because the defendants allegedly failed to file an underinsured motorist claim against Aetna within the six year time limit prescribed by Connecticut law and the plaintiff's insurance contract. The defendants also allegedly failed to commence an action against Aetna within 180 days from the date of exhaustion of the tortfeasors' policy limits as provided in No. 93-77, § 2, of the 1993 Public Acts.

The defendants filed a motion to dismiss the complaint, claiming that the trial court lacked subject matter jurisdiction because the plaintiff's claim was not yet ripe for adjudication. The trial court granted the defendants' motion to dismiss, concluding that until a court, having the proper parties before it, has decided whether the plaintiff's underinsured motorist claim is time barred, the plaintiff's action against the defendants is premature and, therefore, not yet ripe for adjudication.

The trial court properly concluded that the plaintiff's action against the defendants is premature. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); W. Prosser & W. Keeton, Torts (5th Ed.1984) § 30, pp. 164-65." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Here, the plaintiff claims that he lost his underinsured motorist claim against Aetna as a result of the defendants' negligent failure to file a timely action. Because the question of whether the plaintiff's claim against Aetna is time barred has yet to be adjudicated in an action between the plaintiff and Aetna, the issue of whether the defendants breached a duty owed to the plaintiff, assuming a duty to act existed, cannot be determined. If we assume arguendo that Aetna will prevail against the plaintiff, only then can the plaintiff pursue an action against the defendants for legal malpractice.

"Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973) ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable...

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8 cases
  • Milford Power Co., LLC v. Alstom Power, Inc.
    • United States
    • Connecticut Supreme Court
    • 20 Mayo 2003
    ...App. 514, 517-18, 699 A.2d 310 (1997), rev'd on other grounds, 247 Conn. 196, 719 A.2d 465 (1998); Mayer v. Biafore, Florek & O'Neill, 45 Conn. App. 554, 556-57, 696 A.2d 1282 (1997), rev'd on other grounds, 245 Conn. 88, 713 A.2d 1267 (1998); ASL Associates v. Zoning Commission, 18 Conn. A......
  • Esposito v. Specyalski
    • United States
    • Connecticut Supreme Court
    • 6 Abril 2004
    ...App. 514, 517-18, 699 A.2d 310 (1997), rev'd on other grounds, 247 Conn. 196, 719 A.2d 465 (1998); Mayer v. Biafore, Florek & O'Neill, 45 Conn. App. 554, 556-57, 696 A.2d 1282 (1997), rev'd on other grounds, 245 Conn. 88, 713 A.2d 1267 (1998); ASL Associates v. Zoning Commission, 18 Conn. A......
  • American Premier Underwriters, Inc. v. National R.R. Passenger Corp.
    • United States
    • Connecticut Court of Appeals
    • 30 Diciembre 1997
    ...to adjudicate cases that are not justiciable. State v. Nardini, supra, at 111, 445 A.2d 304." Mayer v. Biafore, Florek & O'Neill, 45 Conn.App. 554, 557, 696 A.2d 1282 (1997). Here, because the plaintiff's claim as to the 1976 deeds had not been adjudicated and, consequently, no determinatio......
  • Weiner v. Clinton
    • United States
    • Connecticut Court of Appeals
    • 24 Abril 2007
    ...held that the case was unripe because the plaintiff had no means of establishing causation and damages. See Mayer v. Biafore, Florek & O'Neill, 45 Conn.App. 554, 696 A.2d 1282 (1997), rev'd, 245 Conn. 88, 713 A.2d 1267 Our Supreme Court reversed the judgment of this court and held that the ......
  • Request a trial to view additional results
2 books & journal articles
  • TABLE OF CASES
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Table of Cases
    • Invalid date
    ...Inc. v. Gunther Intern., Ltd., No. CV930134790S 1994 WL 271795 (Conn. Super. Ct. June 6, 1994) 1-9:1 Mayor v. Biafore, Florek & ONeill, 45 Conn. App. 554 (1997) 9-4:3.4 Mayor v. Biafore, Florek & O'Neill, 245 Conn. 88 (1998) 9-4:3.4 Mazzochi v. Beck, 204 Conn. 490 (1987) 10-3 McCarthy v. Sa......
  • CHAPTER 9 - 9-4 STATUTE OF LIMITATIONS
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Chapter 9 Defenses
    • Invalid date
    ...(Conn. Super. Sept. 27, 2013).[66] Mayor v. Biafore, Florek & O'Neill, 245 Conn. 88 (1998).[67] Mayor v. Biafore, Florek & ONeill, 45 Conn. App. 554, 557 (1997); see also Shaws v. Miano, 1998 WL 67413 (Conn. Super. Ct. Feb. 10, 1998) (dismissing a malpractice claim as unripe where the under......

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