Silverberg v. Great Southwest Fire Ins. Co.
| Decision Date | 24 April 1990 |
| Docket Number | No. 13739,13739 |
| Court | Connecticut Supreme Court |
| Parties | Geurson D. SILVERBERG v. GREAT SOUTHWEST FIRE INSURANCE COMPANY. |
Joseph T. Sweeney, Hartford, for appellant (defendant).
Robert J. Cathcart, with whom was James B. Pomeroy, Hartford, for appellee (plaintiff).
Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.
The dispositive issue in this appeal is whether the plaintiff, Geurson D. Silverberg, qualified as an insured under a public officials and employees liability insurance policy (policy) purchased by the city of Norwich from the defendant, Great Southwest Fire Insurance Company. The plaintiff was sued by the city of Norwich for professional malpractice that allegedly had been committed by the plaintiff during his tenure as assistant corporation counsel for that city. The present action was instituted by the plaintiff, when the defendant, upon being notified of the malpractice claim against the plaintiff, denied the plaintiff coverage under the policy. The two count complaint was tried before a jury that found in favor of the plaintiff on each of the counts and awarded damages in the amount of $1,000,000 on the first count and $1,050,000 on the second count. From the judgment rendered on the jury verdicts, the defendant appealed to the Appellate Court; we subsequently transferred this case to ourselves pursuant to Practice Book § 4023. We find error.
The facts relevant to this appeal are as follows. The plaintiff is an attorney who has practiced law in Norwich since 1946. In January, 1974, pursuant to a city ordinance 1 and a resolution of the Norwich city council, the plaintiff was appointed to the position of assistant corporation counsel. The plaintiff was reappointed to that position by the city council in January, 1976, December, 1977, and December, 1979, and served continuously in that capacity until December, 1981. While serving as assistant corporation counsel, the plaintiff was listed on the city payroll and was paid on a biweekly basis. Social security and unemployment taxes were withheld from his earnings. The plaintiff was also eligible to participate in the city's health and life insurance programs. The legal work performed by the plaintiff in his capacity as assistant corporation counsel was assigned to him by the corporation counsel. The plaintiff handled these matters from the office he maintained for his private law practice.
In December, 1982, the plaintiff was sued by the city of Norwich for legal malpractice. The gravamen of the city's complaint was that, while serving as assistant corporation counsel, the plaintiff had failed properly to prosecute a tax appeal on behalf of the city. The plaintiff immediately gave notice of the action against him to his professional malpractice carrier, American Home Assurance Company (American Home). American Home agreed to provide the plaintiff a defense, but reserved its right to refuse to pay the claim. The reservation of rights was based upon the language of the American Home policy that excluded from coverage an insured who was sued by his employer or an insured who was an elected public official or employee of a governmental body.
In October, 1985, the plaintiff learned that the city had purchased an insurance policy from the defendant that had been in effect on the date the malpractice action against him was instituted. The policy included as insureds "those persons who were, now or shall be duly elected or appointed officials or members or employees paid or volunteer" of the city. Concluding that he was an insured under this policy, the plaintiff, on October 31, 1985, sent a letter to the defendant notifying it of the pending malpractice action against him. The notice letter requested that the defendant provide the plaintiff with a defense and indemnify him from any potential loss in the malpractice action. The defendant responded to the plaintiff's request by a letter dated November 12, 1985, in which the defendant refused to provide the plaintiff with insurance coverage, claiming, inter alia, that the plaintiff was not an "insured" under the terms of the policy.
The present action was initiated by the plaintiff in January, 1986, on the basis of the defendant's refusal to provide the plaintiff coverage under the policy. 2 The substitute complaint, dated December 1, 1986, consisted of two counts, the first alleging a breach of contract and the second alleging a breach of the duty of good faith and fair dealing. The case was tried to a jury that returned verdicts in favor of the plaintiff and awarded damages of $1,000,000 on the first count and $1,050,000 on the second count. The trial court rendered judgment accordingly.
On appeal, the defendant claims that the trial court erred in denying its motions for directed verdicts and for judgment notwithstanding the verdicts, because: (1) the plaintiff was not an insured under the terms of the policy; (2) the plaintiff's notice to the defendant of the malpractice action against him was deficient as a matter of law; (3) the evidence before the jury was insufficient to support its finding of bad faith on the part of the defendant; and (4) the evidence before the jury was insufficient to support the dollar amounts of the damage awards. We conclude that the plaintiff did not qualify as an insured under the terms of the policy. The trial court, therefore, erred in denying the defendant's motions for directed verdicts on each of the two counts. In light of our disposition of the defendant's first claim of error, we need not address the other issues raised by this appeal.
The policy definition of an "insured" limited coverage under that policy to the city of Norwich "and those persons who were, now or shall be duly elected or appointed officials or members or employees, paid or volunteer, of the governing body of such commissions, boards or other units operating by and within an apportionment of the total operating budget...." The defendant argues that the evidence presented at trial clearly demonstrated that the plaintiff was neither an "official" nor an "employee" of the city of Norwich, and, therefore, did not qualify as an insured under the terms of the policy. 3 We agree. 4
We turn first to the question of whether the plaintiff, who was appointed to the position of assistant corporation counsel by the Norwich city council, was an appointed "official." Murach v. Planning & Zoning Commission, 196 Conn. 192, 198, 491 A.2d 1058 (1985); see also Kinney v. State, 213 Conn. 54, 61, 566 A.2d 670 (1989).
The defendant concedes that the position of assistant corporation counsel for the city of Norwich does possess two of the three essential characteristics required of a "public office." First, the position was created by ordinance, Murach v. Planning & Zoning Commission, supra, 196 Conn. at 199, 491 A.2d 1058. Second, the ordinance provides that "during such time as the corporation counsel is temporarily absent or disabled [the assistant corporation counsel] shall act in the place of the corporation counsel." The assistant corporation counsel is thus invested by ordinance with the authority, under limited circumstances, to exercise that portion of the sovereign functions of government within the control of the corporation counsel. See Kelly v. Bridgeport, supra.
As the defendant argues, however, the position of assistant corporation counsel did not have a fixed tenure of office. Murach v. Planning & Zoning Commission, supra. In this regard, we find it significant that the ordinance creating the position of assistant corporation counsel specifically provides that the assistant "shall serve at the pleasure of the corporation counsel." This provision clearly does not contemplate that the position be a "continuing and permanent" one. While it is true, as the plaintiff argues, that he was reappointed to the position by the city council every two years from 1974 through 1980, the fact remains that the plaintiff served "at the pleasure of the corporation counsel," not under a fixed tenure of office. 5 Therefore, because the position of assistant corporation counsel did not possess each of the three essential characteristics required of a "public office," the plaintiff was not an "official" of the city of Norwich.
We next consider whether the plaintiff was an "employee" of the city of Norwich. The defendant argues that the plaintiff, in his capacity as assistant corporation counsel, was not an employee, but rather was an independent contractor. We agree.
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