Jun 26 2020

Morrison Mahoney Connecticut Law Newsletter - June 2020

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Settlement Agreements – Law Firm’s Confidentiality Obligations
Authored by: Christina Canales

Pursuit Partners, LLC v. Reed Smith, LLP, 198 Conn. App. 1, __ A.3d __ (2020). The plaintiffs claimed that the defendant law firm violated a confidentiality provision of a settlement agreement. Specifically, on appeal from the trial court’s decision granting the defendant’s motion for summary judgment, the plaintiffs argued that the trial court erred in concluding that (1) the language of the settlement agreement bound the law firm to the confidentiality provision only to the extent that it was the principal of its client and (2) a finding in a related action – namely, that the plaintiffs’ material breach of the settlement agreement effectively released the law firm’s client from its confidentiality obligations thereunder – was entitled to collateral estoppel effect that extended to the law firm, as agent for its client. The Appellate Court noted that the law firm was not a party to the relevant Confidential Settlement Agreement and Mutual Release (“CSA”); however, “§ 7 of the CSA, the only section directed to the parties’ counsel, repeatedly refers to the ‘[p]arties and their respective counsel,’ indicating that the law firm’s obligations thereunder flowed from its role as its client’s counsel. Moreover, the law firm signed the CSA as ‘counsel for [it’s client].’” Viewing the CSA as a whole, the Appellate Court concluded that any confidentiality obligation that the law firm undertook pursuant to § 7 was limited to the extent of the confidentiality obligation of its client, noting “[a]ny other reading of the CSA would strain the objective intentions of the contracting parties . . . and would lead to nonsensical results.” With respect to the law firm’s defensive use of the collateral estoppel doctrine, the Appellate Court concluded that the trial court properly found that the plaintiffs’ breach of contract claim against the law firm was precluded because “[i]n the absence of an independent contractual obligation on the part of [the law firm] to comply with § 7 of the CSA that is untethered to its role and conduct as counsel for [it’s client], [the Court could] conceive of no reason why collateral estoppel principles—and the specific policy of judicial economy they serve—should not apply under the limited circumstances of this case.”

Subject Matter Jurisdiction - Statutory Notice Requirement
Authored by: Connor B. Herdic

MTGLQ Investors, L.P. v. Hammons, 196 Conn. App. 636 (2020). The plaintiff, a mortgage assignee, filed a foreclosure action on real property owned by the defendant. The defendant denied ever receiving written notice of a default on the note. Thereafter, the plaintiff moved for summary judgment as to liability. In opposition, the defendant argued that the plaintiff did not comply with the notice requirement pursuant to General Statutes § 8-265ee (a), which deprived the court of subject matter jurisdiction. In granting summary judgment for the plaintiff, the trial court held that the plaintiff satisfied the statutory notice requirement where the prior mortgagee had given notice to the defendant in a foreclosure action that was thereafter dismissed. On appeal, the Appellate Court was guided by the clear language of § 8-265ee (a) in holding that statute requires the current mortgagee to provide notice to the mortgagor prior to bringing a foreclosure action. In reversing the trial court’s decision, the Appellate Court held that failure by the current mortgagee to adhere to the statutory notice requirement deprived the trial court of subject matter jurisdiction.

Negligence - Discretionary Act Immunity
Authored by: Eva M. Kolstad

James Custer, PPA et al. v. Town of Vernon et al., Superior Court of Connecticut, judicial district of Tolland at Rockville, 2020 WL 2616693 (May 4, 2020, Farley, J.). An 11-year-old student was injured after falling from a balance beam during gym class. Through his father, he brought suit against the town, the town’s board of education, and the gym teacher. The defendants moved for summary judgment, claiming that the plaintiffs’ action is barred by their discretionary act immunity pursuant to C.G.S. §52-577n(a)(2)(B) because the plaintiff could not establish that the “identifiable victim / imminent harm” exception applies. As the plaintiff was a student attending public school during school hours when he fell, there was no dispute that he was an identifiable victim. The question was whether there was an imminent harm, and whether it was apparent to the defendants that their conduct was likely to subject the student to that harm. The trial court noted the applicable standard for “imminent harm” which requires a finding that “the probability that harm will occur must be so high as to require the defendant to act immediately to prevent that harm.” The plaintiffs pointed to the facts that the plaintiff was 11 years old, had been out sick for three days prior to the incident, the beam was 3.5-4 feet high, there was no spotters, the mats on the floor were thin and worn, and there were gaps between the mats that exposed hardwood floors. However, the gym teacher was only aware of a handful of injuries from the balance beam over a 13 year period. Finding the evidence was insufficient to elevate the risk to a level of high probability, the trial court granted the defendants’ motion for summary judgment.

Insurance Coverage - Rental Agreements
Authored by: Tiffany L. Sabato

Penske Truck Leasing Co., LP v. Safeco Ins. Co. of Illinois, United States District Court, D.Conn., 2020 WL 2615499 (May 22, 2020, Dooley, J.). Penske rented a vehicle to a customer through the customer’s employer. While driving the rental vehicle, the customer was in a motor vehicle accident in which he rear-ended another vehicle. At the time of the accident, the driver of the rear-ended vehicle was insured by Safeco under a policy providing underinsured motorist coverage of $500,000.00 per person and $1,000,000.00 per occurrence. For purposes of coverage of the customer during the term of the rental, the customer’s employer elected Penske’s liability coverage at a cost of $20.00 per day. Per Penske’s rental agreement, the coverage provided by Penske would be “in accordance with the standard provisions of a basic automobile liability insurance policy . . . with limits as required by the state financial responsibility law or other applicable statute.” Penske sought a declaratory judgment that it was required to provide the customer the minimum $20,000.00 in coverage. Safeco sought its own declaratory judgment that Penske was required to provide $750,000.00 in liability coverage in accordance with federal motor carrier regulations applicable to vehicles of a certain weight. The trial court granted the relief sought by Penske and concluded that there was no basis—within the agreement language or from public policy—to find that federal regulations should be incorporated into Penske’s rental agreement.

Negligence - Parental Supervision of Children 
Authored by: Michael S. Tripicco

Farnoli v. Tine, Superior Court of Connecticut, judicial district of New Haven at New Haven, 2020 WL 3121033 (May 13, 2020, Wilson, J.). The minor plaintiff was knocked unconscious during a beginner’s sailing lesson as a result of being struck in the face by a swinging mainsail boom that was dislodged by another minor student. The minor plaintiff commenced suit against the student’s mother, alleging that she failed to properly supervise her daughter and instruct her on how to properly handle a boom. The mother moved for summary judgment, arguing that she had no reason to anticipate that her daughter would dislodge the boom, and thus owed no duty to the minor plaintiff. The mother contended that her daughter had no prior sailing experience and was therefore enrolled in a beginner’s lesson for that reason. In opposition, the minor plaintiff argued that because the mother was “unaware” of physical and mental demands of sailing, she failed to adequately prepare her daughter for the lesson. The court rejected plaintiff’s arguments ruled in favor of the mother. The court reasoned that a beginner’s lesson – by definition – implied that no prior experience or training was required. As such, there was no reason that the mother should have anticipated the need to take additional steps to prepare her daughter for the lesson.



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