Pascola-Milton v. Millard

• Decision Date: 09 March 2021
• Docket Number: AC 43011
• Citation: 203 Conn.App. 172,247 A.3d 652
• Court: Connecticut Court of Appeals
• Parties: Diana PASCOLA-MILTON v. Leroy MILLARD et al.

203 Conn.App. 172

247 A.3d 652

Diana PASCOLA-MILTON

v.Leroy MILLARD et al.

AC 43011

Appellate Court of Connecticut.

Argued November 17, 2020

Officially released March 9, 2021

Diana Michele Pascola-Milton, self-represented, the appellant (plaintiff).

Clive Milton, self-represented, the appellant (plaintiff).

John W. Cannavino, Jr., Stamford, for the appellee (named defendant).

Bryan J. Haas, Hartford, for the appellee (defendant Liberty Mutual Fire Insurance Company).

Prescott, Cradle and DiPentima, Js.

CRADLE, J.

In this case arising from a motor vehicle accident between the plaintiff Diana Pascola-Milton and the named defendant, Leroy Millard, Pascola-Milton appeals from the judgment of the trial court denying her demand for a trial de novo following an arbitration award in her favor against her insurer, the defendant Liberty Mutual Fire Insurance Company (Liberty), for underinsured motorist benefits. Pascola-Milton argues that she has an absolute right to a trial de novo.¹ Clive Milton, Pascola-Milton's husband and co-plaintiff, appeals from the summary judgment rendered in favor of Millard on Milton's derivative claims for loss of consortium, bystander emotional distress and negligent infliction of emotional distress.²

Milton claims that the court erred in rendering summary judgment in favor of Millard on the ground that those claims were barred by the applicable statute of limitations because Milton's complaint was filed more than two years after the motor vehicle accident. We affirm the judgment of the trial court.

The following procedural history is relevant to this appeal. On November 29, 2014, Pascola-Milton was injured in a two car motor vehicle accident involving Millard. On July 6, 2016, she commenced this action, asserting a negligence claim against Millard, and a claim for underinsured motorist benefits against Liberty.

On October 17, 2017, Milton filed a motion to join this action as a party plaintiff, and that motion was granted on November 30, 2017. In his operative complaint, Milton asserted claims for loss of consortium, bystander emotional distress, and negligent infliction of emotional distress against Millard. He also asserted, inter alia, claims for loss of consortium and bystander emotional distress against Liberty, in addition to claims for intentional infliction of emotional distress, underinsured motorist benefits, violations of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.³

On March 16, 2018, Pascola-Milton withdrew her action as to Millard after he accepted her offer of compromise. On August 20, 2018, she entered into a voluntary arbitration agreement with Liberty. An evidentiary hearing was held before the arbitrator on January 3, 2019, and Pascola-Milton withdrew her complaint against Liberty on January 14, 2019. On January 30, 2019, the arbitrator issued a decision awarding Pascola-Milton $72,635 in damages.

On February 11, 2019, Pascola-Milton filed a demand for a trial de novo, which stated: "Pursuant to [Practice Book] [§] 23-66 (c) ... [and General Statutes §§] 52-549z and 52-549aa ... [Pascola-Milton] hereby appeals from the arbitrator's decision and claims the matter for a trial de novo in accordance with the rules." On March 21, 2019, the trial court, D'Andrea, J. , denied her demand, finding that there was no statutory right to a trial de novo on an unrestricted voluntary submission to arbitration. On April 5, 2019, Pascola-Milton filed a motion to reargue and for reconsideration of the court's denial of her demand for a trial de novo. On April 29, 2019, the court, Krumeich, J. , denied Pascola-Milton's motion.

Meanwhile, on January 9, 2019, Millard moved for summary judgment on Milton's claims against him on the ground that those claims were barred by the two year statute of limitations set forth in General Statutes § 52-584. After Milton timely objected and the court, D'Andrea, J. , heard oral argument from the parties, the court issued a memorandum of decision dated April 22, 2019, granting Millard's motion for summary judgment on all of the counts directed against him in Milton's complaint on the ground that Milton's claims were barred by the statute of limitations.

On June 3, 2019, Pascola-Milton and Milton filed this joint appeal challenging the denial of Pascola-Milton's demand for a trial de novo and the judgment for Millard on Milton's complaint.

I

Pascola-Milton claims that the trial court erred in denying her demand for a trial de novo following the arbitrator's decision on her claims against Liberty. Pascola-Milton argues that she had an "absolute right" to a trial de novo. We disagree.

In addressing Pascola-Milton's demand for a trial de novo, the trial court set forth the following additional relevant facts. "On February 11, 2019 ... Pascola-Milton filed the present motion for a demand for trial de novo. [Pascola-Milton's] motion alleges that pursuant to Practice Book § 23-66 (c) ... and ... §§ 52-549z and 52-549aa, [she] is appealing the arbitrator's decision and requests the court schedule a trial de novo. By way of background, [Pascola-Milton] and [Liberty] executed a voluntary submission entitled ‘Arbitration Agreement’ (agreement) in August, 2018. In the opening paragraph of the agreement, it states: ‘[T]he parties agree to submit all claims to a final and binding arbitration before Attorney Richard Mahoney as arbitrator.’ The agreement further states: ‘11. The parties agree that the arbiter will be asked to determine liability and fair, just and reasonable damages .... 13. The Arbitrator shall resolve all differences and disputes between the parties .... [And finally] 17. The award shall be final, binding and not subject to review or appeal, except as provided by Connecticut Arbitration Statutes.’ "

The court denied Pascola-Milton's demand for a trial de novo, reasoning: "In the present matter, if the agreement was not subject to compulsory arbitration, but was a voluntary submission, a trial de novo is not warranted. The demand for trial de novo can only be made if the arbitration was compulsory pursuant to General Statutes § 52-549u. Based on the foregoing, the court finds that this agreement was clearly an unrestricted voluntary submission, and thus, not subject to an ability to seek a trial de novo. There is clearly no provision in § 52-549u that allows for a trial de novo for a voluntary submission to arbitration."

Pascola-Milton argues that she had an absolute right to a trial de novo following the arbitrator's decision on her claims against Liberty. The standard of review for arbitration awards is determined by whether the arbitration was compulsory or voluntary. "Where the parties have voluntarily and contractually agreed to submit to arbitration and have delineated the powers of the arbitrator through their submission, then the scope of judicial review of the award is limited by the terms of the parties’ agreement and by the provisions of General Statutes § 52-418.... Thus, in determining whether an arbitrator has exceeded his authority or improperly executed the same under § 52-418 (a), the courts need only examine the submission and the award to determine whether the award conforms to the submission. ... Under an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. ...

"Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. ... It is clear that a party cannot object to an award which accomplishes precisely what the [arbitrator was] authorized to do merely because that party dislikes the results. ... Thus ... the parties should be bound by a decision that they contracted and bargained for, even if it is regarded as unwise or wrong on the merits." (Citations omitted.) American Universal Ins. Co. v. DelGreco , 205 Conn. 178, 185–87, 530 A.2d 171 (1987).

Here, the trial court determined that the submission in this case was voluntary and unrestricted. Pascola-Milton has not challenged that determination, nor could she reasonably do so because, as noted by the trial court, the parties voluntarily contracted to submit their issues to arbitration, and the arbitration agreement provided, inter alia, that the arbitrator would resolve all differences and disputes between them. The legal authority pursuant to which Pascola-Milton argues that she had an absolute right to a trial de novo, specifically § 52-549z and Practice Book § 23-66 (c), pertains to compulsory arbitration, not voluntary arbitration. Because Pascola-Milton voluntarily submitted her claims against Liberty to arbitration, any review of the arbitrator's decision is governed by § 52-418, under which there is no right to a trial de novo. Accordingly, Pascola-Milton's challenge to the denial of her demand for a trial de novo is unavailing.

II

Milton claims that the court erred in rendering summary judgment in favor of Millard on the ground that his claims are barred by the two year statute of limitations set forth in § 52-584. He contends that his claims are subject to the three year statute of repose contained in § 52-584. We disagree.⁴

Our review of a trial court's decision granting a motion for summary judgment is well established. "Practice Book § [ 17 -49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. ... The facts at issue are those...