Dec 24 2019

Connecticut Insurance Law - 12/24/2019

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Worker’s Compensation – Controlled Substances Act
Authored by: Alessandra Perna Carullo

Edward Caye v. Thyssenkrupp Elevator, 6296 CRB-1-18-11. On appeal from the Trial Commissioner’s Finding and Award, the Compensation Review Board (CRB) addressed whether the federal Controlled Substances Act (CSA) prohibits a state agency from ordering an insurance carrier to pay or reimburse for marijuana prescriptions. The Trial Commissioner ordered the respondents to pay for the claimant’s medical marijuana prescriptions and reimburse his expenses in obtaining medical marijuana. The respondents appealed arguing that the Supremacy Clause of the U.S. Constitution acts to preempt any inconsistent state statute such as Connecticut’s medical marijuana program, and because the federal statute criminalizes "aiding and abetting" the procurement of marijuana, the respondents cannot be ordered by a state court or administrative agency to violate the federal statute. The CRB concluded that the respondents’ fear of federal prosecution for compliance with a lawful order is speculative, and should an employer or insurer fail to reimburse under an order, it could be subject to monetary sanctions. The CRB held that these penalties would negate the mens rea of willfulness necessary to sustain a criminal prosecution for "aiding and abetting" a criminal act pursuant to the CSA, because the employer or insurer reimbursing a claimant for medical marijuana prescriptions would not be acting volitionally, but under an order from a state agency exercising its statutory police powers and empowered to sanction noncompliance. 

Landlord Liability - Dog Bite Statute
Authored by: Michael P. DiPietro

Thisdale v. Lagrega, Superior Court of Connecticut, WL 3526450. The Court granted the defendant landlord’s motion for summary judgment for injuries to a passerby caused by a tenant’s dog. The plaintiff was walking past the defendant’s property when she was attacked by a tenant’s dog. The plaintiff argued that the landlord’s consent to allow the tenant’s dog in a common area was sufficient to establish the landlord as a "keeper" under the Connecticut General Statutes §22-357. The defendant argued that she never exercised any control over the dog, and that mere ownership of the property was not sufficient to deem her a "keeper" within the meaning of the statute. The Court agreed, holding that a landlord’s consent for a tenant to have a dog in a common area while accompanied by the tenant dog owner does not evidence "control" by the landlord, and therefore does not impose liability onto the landlord under the statutent.

Attorney Professional Conduct – Communications With Plaintiffs
Authored by: Jonathan A. Krumeich

Streeter v. Liberty Mut. Fire Ins. Co., Superior Court of Connecticut, 2019 WL 2383418. In a dispute over water damage to a plaintiff’s basement caused by a furnace malfunction, an inspection of damage to the plaintiff’s home was performed in the absence of plaintiff’s counsel. During this inspection, the property insurer’s attorney made statements that elicited replies from the plaintiff helpful to the insurer’s defense. The Court concluded that these statements constituted a violation of the Rules of Professional Conduct §4.2, which prohibits an attorney from "communicating" with an opponent without the consent of opposing counsel. The Court disqualified the property insurer’s attorney from further representing the insurer in the action, awarded reasonable attorney’s fees to the plaintiff, and barred any evidence gained from the inspection, or the plaintiff’s statements, from being admitted at trial.

Products Liability – Alternative Liability Doctrine
Authored by: Shari N. Pearlman

Connecticut Interlocal Risk Management Agency v. Jackson et al, 333 Conn. 206 (2019) The Connecticut Supreme Court considered whether the alternative liability doctrine could be applied when the plaintiff could not establish which specific defendant caused the harm. The subrogee of the insured town filed an action against the three defendants alleging that their negligent disposal of cigarettes inside a privately owned, abandoned mill in the town ignited and caused a fire that destroyed the mill and public aboveground sewerage line in the basement of the mill. The trial court granted the defendants' motions for summary judgment on the ground that the plaintiff could not establish which of the defendants' cigarettes had sparked the blaze and, therefore, could not establish causation. On appeal, the Supreme Court held that the alternative liability doctrine could be applied, which provides that when the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. The Court held that application of the rule was not a return to the past system of joint and several liability as the rule is fully compatible with the modern apportionment scheme, and when subject to the alternative liability rule, the defendants fare better under the apportionment approach because, in the event they are unable to absolve themselves of liability, the law requires that the plaintiff's damages be apportioned equally among them, with each defendant liable for only his or her proportionate share.

Attorney Professional Conduct - Communications With Expert Witness
Authored by: Tiffany L. Sabato

Epright v. Liberty Mutual Insurance Co., Superior Court of Connecticut, 2019 WL 2019 WL 3220580. After the deposition of the defendant’s disclosed damages expert (a doctor), the plaintiff’s counsel contacted the doctor without the knowledge or consent of the defendant’s counsel. Through this ex parte communication, the plaintiff’s counsel retained the doctor, for a fee, to conduct a medical examination of the plaintiff and, in advance of the examination, disclosed the doctor as the plaintiff’s expert. After the examination, the doctor changed his opinion to support the plaintiff. The Court concluded that an attorney is not permitted to engage in ex parte contact with an opponent’s expert witness, as to do so is to disregard Connecticut’s prescribed discovery procedures. As such, the Court disqualified the doctor from testifying for either party, continued the trial date to allow time for the defendant to retain a new expert witness, and invited the defendant’s counsel to file a motion for sanctions and/or recovery of attorney’s fees or costs. Notably, the Court remarked that the plaintiff’s counsel’s actions arguably violated Rule 3.4(3) of the Rules of Professional Conduct, but based on counsel’s representation in open court that he believed his actions were permissible, the Court made no finding of such violation.

 

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