Vanliner Ins. Co. v. Fay, (AC 26323)

• Decision Date: 17 October 2006
• Docket Number: (AC 26323)
• Citation: 98 Conn. App. 125,907 A.2d 1220
• Parties: VANLINER INSURANCE COMPANY v. THOMAS E. FAY
• Court: Connecticut Court of Appeals

907 A.2d 1220

98 Conn. App. 125

VANLINER INSURANCE COMPANY v. THOMAS E. FAY

(AC 26323)

Appellate Court of Connecticut.

Argued May 30, 2006,

Officially released October 17, 2006.

Gruendel, Harper and Hennessy, Js.

Christopher B. Weldon, with whom, on the brief, was Darren P. Renner, for the appellant (defendant).

Duncan J. Forsyth, with whom was Benjamin C. Jensen and, on the brief, James V. Somers, for the appellee (plaintiff).

Opinion

GRUENDEL, J.

In this breach of contract and negligence action, the defendant, Thomas E. Fay, an insurance adjuster, appeals from the judgment of the trial court rendered, after a trial to the court, in favor of the plaintiff, Vanliner Insurance Company. The court found that the defendant had breached his duty of care and the parties' contract, and awarded the plaintiff damages in the amount of $737,568. On appeal, the defendant claims that the court improperly (1) considered evidence regarding an issue that was barred by collateral estoppel, (2) determined that the plaintiff was not required to present expert testimony on the issue of professional negligence, (3) concluded that the continuing course of conduct doctrine prevented the plaintiff's negligence claims from being barred by the statute of limitations, (4) determined that the six year statute of limitations, as opposed to the three year statute of limitations, applied to the plaintiff's breach of contract claims and (5) found that the plaintiff fulfilled its duties to mitigate damages. We affirm the judgment of the trial court.

The court made the following findings of fact. Prior to May 2, 1992, the plaintiff issued a workers' compensation insurance policy to Mail Contractors of America, Inc. (Mail Contractors). On May 2, 1992, Robert Anastasio, an employee of Mail Contractors, was injured when he fell from a truck in the course of employment with the company. Anastasio began receiving workers' compensation benefits on May 3, 1992, and did not return to work after his injury. The claim qualified for transfer to the second injury fund (fund) under General Statutes § 31-349.

On May 18, 1992, the plaintiff hired the defendant to represent it and Mail Contractors before the workers' compensation commission.¹ The defendant submitted the proposed voluntary agreement for transfer to Anastasio's attorney on January 15, 1993, with a request that the documents be signed and returned to him. When the defendant did not receive a response, he sent another agreement and request on September 16, 1993, which also was not returned. Both agreements set forth a date of incapacity of May 3, 1992. Finally, the defendant had the transfer agreement hand delivered to Anastasio's attorney for execution, and the defendant delivered it to the fund's office on February 2, 1994. The agreement, executed by the defendant on behalf of the plaintiff and approved by the workers' compensation commissioner (commissioner), identified May 3, 1992, as the "date when incapacity began."

On September 30, 1998, the commissioner initially found that the plaintiff had failed to meet the notice requirements of § 31-349 (b)² as it existed prior to July 1, 1995. Under the version of § 31-349 (b) in effect on the date of Anastasio's injury and at the time the fund received the voluntary agreement, notice of a claim for transfer to the fund was due on the ninetieth day prior to the payment of 104 weeks of compensation. The commissioner found that the plaintiff began paying compensation on May 3, 1992; therefore, notice of a claim for transfer to the fund was due on January 31, 1994, or two days prior to the date that the defendant filed the voluntary agreement for transfer.

The commissioner nonetheless concluded that the plaintiff's notice to the fund was timely via the retroactive application of Public Acts 1995, No. 95-277, § 3 (b) (P.A. 95-277),³ which amended § 31-349 effective July 1, 1995, and extended the time for filing a transfer claim to no later than ninety days after the completion of the first 104 weeks of disability. According to the commissioner, P.A. 95-277, § 3 (b) (1), lengthened the time allowed for the plaintiff's initial notification by 180 days. Despite this finding of timeliness, the commissioner concluded that the plaintiff's claim should be dismissed because, pursuant to P.A. 95-277, § 3 (b) (2) (E), the plaintiff had failed to pay the required $2000 notification fee, which would have completed notification to the fund. Further, the commissioner determined that because notification was left incomplete, the fund bore no responsibility for the claim. As a result, the plaintiff bore sole responsibility for satisfying Anastasio's claim.

On October 7, 1998, the plaintiff appealed to the workers' compensation review board (board), which affirmed the dismissal of the proposed transfer on the ground that notice to the fund was untimely. The plaintiff then appealed to this court, which dismissed the appeal as moot. Anastasio v. Mail Contractors of America, Inc., 69 Conn. App. 385, 794 A.2d 1061, cert. denied, 261 Conn. 914, 915, 806 A.2d 1053 (2002).

In March, 1998, the plaintiff commenced litigation against the defendant, alleging negligence and breach of contract for his failure to file timely notice of the claim with the fund. On June 26, 2002, the plaintiff attempted to amend its complaint to include allegations that the defendant failed to advise the plaintiff that it was required to pay the $2000 notification fee under the amended statute. The court denied the plaintiff's request to amend on the ground that the allegations were time barred and did not relate back to the original complaint as to timeliness.

Thereafter, on September 7, 2004, the court filed its memorandum of decision, finding in favor of the plaintiff as to liability only. The court allowed the parties to file briefs on the issues of damages and mitigation, which would be decided later. On January 20, 2005, the court filed its memorandum of decision awarding the plaintiff damages in the amount of $737,568 plus costs. On January 31, 2005, the defendant filed a motion for extension of time within which to appeal, which the court granted on February 1, 2005. On February 28, 2005, the defendant filed this appeal.

I

The defendant first claims that the court improperly found that he breached his duty of care and the parties' contract by not filing a timely notice of transfer to the fund. The defendant makes a two part argument concerning this claim. First, he argues that the court improperly considered evidence of whether notice was timely because the plaintiff was collaterally estopped from litigating this issue again. Second, he argues that the court also improperly considered evidence of whether notice was complete because the plaintiff was barred from amending its complaint to include additional allegations of incompleteness of notice. We are not persuaded by either argument.

A

The defendant claims that the court should not have considered evidence of whether notice was timely in determining that he breached his duty of care and the parties' contract. Specifically, the defendant argues that this court previously determined in a separate case involving both the plaintiff and the defendant that notice was timely, and, therefore, the plaintiff was collaterally estopped from litigating this issue. Accordingly, the defendant argues, judgment should have been rendered in his favor. This argument, however, misconstrues the doctrine of collateral estoppel and the record in this case.

The following additional facts are necessary for an understanding of the defendant's claim. Following the decision of the board on October 7, 1998, affirming the commissioner's dismissal of the plaintiff's request to transfer Anastasio's disability claim to the fund, the plaintiff and the defendant⁴ appealed to this court. Anastasio v. Mail Contractors of America, Inc., supra, 69 Conn. App. 385. This court determined that notice was timely because the retroactive application of P.A. 95-277, § 3 (b), extended the time for filing by 180 days. Id., 387. Nonetheless, this court also concluded that it could not grant any practical relief because notice was incomplete and, thus, transfer of the claim was barred. Id., 400. Specifically, the plaintiff could not have been expected or required to pay $2000 when the notice was filed in February, 1994, because this notification fee did not become a requirement, pursuant to the retroactive application of P.A. 95-277, § 3 (b), until July, 1995. This court also concluded, however, that the fee should have been paid in July, 1995, when the amendment became effective, or at least within a reasonable period of time thereafter.⁵ Id., 399-400.

We identify the standard of review and legal principles that guide the resolution of the defendant's claim. "Whether the court properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn. App. 454, 461, 897 A.2d 136 (2006). "To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case." (Internal quotation marks omitted.) 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 153, 888 A.2d 141 (2006).

At the outset, we note that the issues litigated in the present case and in Anastasio were not the same. In Anastasio, this court addressed whether the employee's claim was transferable to the fund. We held that it was not, concluding that notice was timely under ...