Olson v. Accessory Controls & Equipment Corp.

• Decision Date: 17 August 1999
• Docket Number: (AC 18324)
• Citation: 54 Conn. App. 506,735 A.2d 881
• Court: Connecticut Court of Appeals
• Parties: WILLIAM A. OLSON v. ACCESSORY CONTROLS AND EQUIPMENT CORPORATION ET AL.

54 Conn. App. 506

735 A.2d 881

WILLIAM A. OLSON v. ACCESSORY CONTROLS AND EQUIPMENT CORPORATION ET AL.

(AC 18324)

Appellate Court of Connecticut.

Argued April 22, 1999.

Officially released August 17, 1999.

Foti, Spear and Hennessy, JS. Alan I. Scheer, with whom were Christopher M. Haddad and, on the brief, Michael N. LaVelle, for the appellant (plaintiff).

Richard D. O'Connor, with whom were Glenn A. Duhl and, on the brief, Edward F. O'Donnell and George J. Kelly, Jr., for the appellee (named defendant).

Lawrence S. Coburn, pro hac vice, with whom were Stephen Sinatro and, on the brief, Michael D. O'Connell and Julia B. Morris, for the appellee (defendant Teleflex Lionel-Dupont S.A.).

Opinion

FOTI, J.

The plaintiff, William A. Olson, appeals from the judgment of the trial court dismissing his complaint against the defendant Teleflex Lionel-Dupont S.A. (Teleflex), and the defendant Accessory Controls and Equipment Corporation (Accessory Controls). On appeal, the plaintiff claims that the trial court improperly (1) granted Teleflex's motion to dismiss based on lack of personal jurisdiction, (2) granted Accessory Controls' motion for a protective order with respect to certain information based on the attorney-client privilege, (3) granted Accessory Controls' motion in limine and (4) granted Accessory Controls' motion to dismiss. We affirm the judgment of the trial court.

The following facts, taken largely from the allegations contained in the plaintiffs complaint, are relevant to our resolution of this appeal. In December, 1981, the plaintiff was employed by Accessory Controls as an engineering technician in Accessory Controls' Windsor plant. Accessory Controls manufactured, among other things, air conditioning equipment, jet air starters and ground power units for airplanes. By 1985, the plaintiff had been promoted to plant manager and was responsible for the manufacturing operations at Accessory Controls. The plaintiff held this position at all times relevant to the allegations in his complaint.

On or about January 30, 1990, the state department of environmental protection (department) issued an order to Accessory Controls requiring it to submit a report to the department concerning the storage, disposal and removal of hazardous waste at the Windsor plant. After receiving the order, Accessory Controls engaged Carol W. Briggs, an attorney, to provide it with legal advice on how to proceed with the order. In turn Briggs hired Environmental Management and Compliance Corporation (Environmental Management), and its subcontractor Soils Engineering Services, Inc. (Soils Engineering), to conduct an investigation and to provide Accessory Controls and Briggs with information.

A preliminary environmental investigation was performed by Environmental Management and Soils Engineering. On or about June 7, 1990, Environmental Management and Soils Engineering issued a preliminary report regarding the Windsor plant. That report, which is referred to by the parties as the Diaz report, was submitted to Accessory Controls and shared with the plaintiff in his capacity as plant manager. According to Accessory Controls, however, the Diaz report contained information about areas in the Accessory Controls plant that were not the subject of the department's inquiry. In response, Briggs identified the portions of the Diaz report that were not responsive to the department's request, information that she then communicated to Accessory Controls and to Environmental Management.

Accessory Controls asserts that it became clear that Environmental Management would be unable to separate the responsive information in the Diaz report, which the department sought, from the nonresponsive information. On June 22, 1990, Briggs then sent Environmental Management a letter reflecting Brigg's position as to whether the Diaz report should be released to the department. That letter is referred to by the parties as the Briggs notice. Accessory Controls then retained another environmental consulting firm, Environmental Laboratories, Inc. (Environmental Laboratories), to conduct a second evaluation of the Windsor plant. Accessory Controls then submitted the report generated by Environmental Laboratories to the department in compliance with the original department order. The June 7, 1990 Diaz report was never submitted to the department. Thereafter, and according to the plaintiffs complaint, the defendant Teleflex, a French corporation, acquired an ownership interest in Accessory Controls. In February, 1992, Teleflex's representatives Francois Calvarin and Alex Reese visited the Windsor plant as part of a postacquisition review of Accessory Controls' operations. While there, Calvarin and Reese questioned the plaintiff about Accessory Controls' prior practices with regard to the storage and disposal of toxic and hazardous waste at the plant. Calvarin and Reese encouraged the plaintiff to cooperate with their investigation by promising the plaintiff that his communications with them would be confidential and would not be shared with Accessory Controls' management. They further assured him that his communications with them would not be the subject of reprisal or other negative employment action.

Relying on Calvarin and Reese's assurances, the plaintiff disclosed to them that there had, in fact, been improper storage and disposal of toxic and hazardous waste at the Windsor plant. The plaintiff further advised them of the existence of the June 7, 1990 Diaz report submitted to Accessory Controls by Environmental Management and Soils Engineering. The plaintiff asserts that despite their assurances, Calvarin and Reese communicated to senior management at Accessory Controls the information that the plaintiff had provided them.

According to the plaintiff, upon learning of his disclosures to Calvarin and Reese, Accessory Controls commenced a campaign of retaliation against the plaintiff with the apparent goal of forcing him to resign or, in the alternative, to provide Accessory Controls with a justification for dismissing him. On February 12, 1993, following the unsuccessful campaign to force him to resign, Accessory Controls dismissed the plaintiff under the pretext that his position had been eliminated. Following his termination, the plaintiff commenced this present suit against Accessory Controls and Teleflex.

In count one of his complaint, the plaintiff claimed that Accessory Controls had wrongfully terminated his employment in that his dismissal "contraven[ed] public policy with respect to the environmental laws and regulations of the state of Connecticut in that [his] dismissal was in retaliation for [the] plaintiffs report of the environmental hazards to the [Teleflex] representatives." In count two, the plaintiff brought an action against Teleflex sounding in negligent misrepresentation. He claimed that the statements made by Calvarin and Reese that their communications with the plaintiff would be confidential and would not be shared with the president and chief executive officer of Accessory Controls, and that the plaintiffs revelations would not be the subject of reprisal or other negative employment action contained false information. The plaintiff sought reinstatement to his former position, back pay and damages.

In response to the plaintiff's complaint, Teleflex filed a motion to dismiss claiming a lack of personal jurisdiction. In support of its motion, Teleflex claimed that it was a French corporation with virtually no contact with Connecticut. It asserted that the only conduct that could arguably provide a basis for establishing personal jurisdiction would be "tortious conduct" within the state of Connecticut by Teleflex or its employees. Teleflex argued, however, that the plaintiff had failed to allege sufficient specific facts in his complaint that would establish such a basis. On April 12, 1995, the trial court agreed and granted Teleflex's motion to dismiss.

In the course of the remaining litigation between the plaintiff and Accessory Controls, Accessory Controls filed a motion for a protective order, pursuant to Practice Book § 13-5,¹ seeking to preclude the plaintiff and his attorneys from disclosing, inter alia, oral and written communications that occurred between the plaintiff and Accessory Controls' attorneys made for the purpose of conveying legal advice. Accessory Controls also sought the return of all documents containing such communications. In a memorandum of decision dated April 19, 1996, the trial court granted Accessory Controls' motion for a protective order finding that the documents sought were, in fact, protected by the attorney-client privilege and that the crime fraud exception was not applicable under the facts of the case.

Prior to jury selection, Accessory Controls filed a motion in limine, asking the trial court to adopt the earlier protective order and to exclude, from trial, any of the information previously determined to be protected by the attorney-client privilege. Thereafter, the trial court adopted the findings contained in the earlier protective order and prohibited any use or reference to either the Diaz report or the Briggs notice, or the information they contained. Accessory Controls then moved orally to dismiss the action, arguing that, because of the trial court's evidentiary ruling to exclude from disclosure the information contained in the protective order, the plaintiff would be unable to present relevant material facts and that it would be impossible for the plaintiff to present a prime facie case. The plaintiff also joined in asking the trial court to rule on the motion. The trial court then granted Accessory Controls' motion dismissing the plaintiffs complaint, and this appeal followed.

I

The plaintiff first claims that the trial court improperly granted Teleflex's motion to dismiss based on lack of personal jurisdiction. We do not agree.

On April 12, 1995, the trial court...