Melia v. Hartford Fire Ins. Co.

• Citation: 520 A.2d 605,202 Conn. 252
• Court: Supreme Court of Connecticut
• Decision Date: 10 February 1987
• Parties: Nicola MELIA v. HARTFORD FIRE INSURANCE COMPANY.

Page 605

520 A.2d 605

202 Conn. 252

Nicola MELIA v. HARTFORD FIRE INSURANCE COMPANY.

Supreme Court of Connecticut.

Argued Dec. 3, 1986.

Decided Feb. 10, 1987.

James F. Stapleton, with whom, on brief, were Thomas J. Byrne, Stamford, and Stefan R. Underhill, New Haven, for appellant (defendant).

Frank W. Murphy, with whom, on brief, were Reuben S. Midler, Norwalk, and Cynthia A. Martin, Stamford, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and GLASS, JJ.

SHEA, Associate Justice.

This action was brought upon a fire insurance policy issued by the defendant on January 16, 1981, to protect the plaintiff against loss by fire to his building at 430 Elm Street in Stamford, which was substantially damaged in a fire that occurred on March 23, 1981. The complaint claimed liability on the policy in the first count and in the second count sought damages because the defendant had allegedly refused to pay the fire loss without proper cause and thus had failed to act in good faith and to deal fairly with its insured. In answering the complaint, the defendant admitted its issuance of the policy but denied the remaining allegations. The defendant also pleaded wilful concealment and material misrepresentations by the plaintiff as a special defense, which the plaintiff denied.

On June 21, 1985, in accordance with the plaintiff's request, the trial court ordered the defendant to produce its claims file for inspection by the plaintiff, overruling objections of the defendant based upon the attorney-client privilege and the "work product" doctrine. See Hickman v. Taylor, 329 U.S. 495, 504-14, 67 S.Ct. 385, 390-95, 91 L.Ed. 451 (1947). After its motion to open that "judgment" had been denied on July 29, 1985, the defendant appealed.

On its own initiative this court raised the question of whether the appeal had been taken from a final judgment, a necessary prerequisite to our jurisdiction. ¹ We conclude that the disclosure order appealed from does not constitute a final judgment and that the appeal must accordingly be dismissed for lack of jurisdiction.

The defendant recognizes that our jurisdiction is restricted ordinarily to appeals from judgments that are final. See General Statutes §§ 51-199, 52-263. It maintains, however, that our authority to construe the statutory term "final judgment" has been exercised on some occasions to allow appeals from orders of the trial court that are essentially interlocutory. This contention is undoubtedly sound, because, "[i]n both criminal and civil cases ... we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal." State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We have set forth two circumstances under which an otherwise interlocutory order may be appealed: "(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." Id.

The defendant does not claim that the first Curcio alternative, termination of a separate and distinct proceeding, is applicable to this appeal from a disclosure order. It relies wholly on the second, claiming that its rights under the attorney-client privilege and the related work product doctrine will be inalterably concluded if it must, without appellate review, comply with the order by making the requested documents available to the plaintiff.

"An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions." Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980). This court has previously dismissed appeals from discovery rulings that, if erroneous, would have compelled those subject to the order to reveal information they were entitled by law to withhold. Barbato v. J. & M. Corporation, 194 Conn. 245, 478 A.2d 1020 (1984) (appeal from order compelling testimony where witness attempted to invoke privilege against self-incrimination); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., supra (appeal from sanctions imposed for refusal of defendant garnishee to produce documents).

The federal courts have held similarly that, because most discovery orders do not finally dispose of the proceeding, they are not appealable as final judgments. Cogen v. United States, 278 U.S. 221, 223-24, 49 S.Ct. 118, 119, 73 L.Ed. 275 (1929); 4 J. Moore, Federal Practice (2d Ed.1986) § 26.83. A federal statute creates an exception to the final judgment rule, however, and authorizes the courts of appeals to exercise discretionary jurisdiction over appeals from interlocutory orders of the district court when that court certifies that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation...." 28 U.S.C. § 1292(b). Even under this enlarged jurisdiction, discovery orders are seldom appealable, because they do not ordinarily present novel controlling legal questions or accelerate the disposition of actions. 4 J. Moore, supra, § 26.83[9.-2].

Though in some instances the federal courts of appeals have entertained appeals pursuant to § 1292(b) from discovery orders presenting issues of claimed violations of the attorney-client privilege and the privilege against self-incrimination, these appeals have usually raised issues of wide general significance affecting interests beyond those of the parties. See Garner v. Wolfinbarger, 430 F.2d 1093, 1097 (5th Cir.1970); Radiant Burners, Inc. v. American Gas Assn., 320 F.2d 314, 317 (7th Cir.1963). Where there has been no certification by the district court pursuant to § 1292(b), however, it has been held that an order for production of documents that is claimed to infringe the attorney-client privilege does not meet the federal standard for final judgments that do not terminate actions. International Business Machines Corporation v. United States, 480 F.2d 293, 297 (2d Cir.1973). That standard allows interlocutory appeals for only those decisions falling within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). It appears that the federal courts have not deemed the breach of confidentiality involved in a discovery order infringing upon the attorney-client privilege to be sufficiently important to transform an interlocutory order into a final judgment under this standard. International Business Machines Corporation v. United States, supra.

This court has no discretionary jurisdiction comparable to that given the federal courts by § 1292(b...