Doyle v. Universal Underwriters Ins. Co.

179 Conn.App. 9

178 A.3d 445

Robert DOYLE

v.UNIVERSAL UNDERWRITERS INSURANCE COMPANY

AC 39253

Appellate Court of Connecticut.

Argued October 18, 2017

Officially released December 26, 2017

David A. Zipfel, for the appellant (plaintiff).

Robert E. Koosa, for the appellee (defendant).

Alvord, Prescott and Mihalakos, Js.

ALVORD, J.

The plaintiff, Robert Doyle, appeals from the summary judgment rendered by the trial court in his favor¹ in the amount of $5924 in this action to recover underinsured motorist benefits under an automobile insurance policy issued by the defendant, Universal Underwriters Insurance Company (Universal). The plaintiff suffered injuries in a collision between his automobile and that of an underinsured motorist, Neil Nilson. On appeal, the plaintiff claims that the court improperly determined that he was collaterally estopped from relitigating the amount of damages awarded to him in binding arbitration with Nilson. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history.² On or about November 3, 2010, the plaintiff was involved in a multicar motor vehicle accident. On January 3, 2011, the plaintiff filed an action in Superior Court against Nilson, the driver of one of the other vehicles involved in the accident. In an amended complaint dated September 26, 2012, the plaintiff alleged that, as a result of Nilson's negligence, he suffered injuries, including, inter alia, a scapular fracture of the left shoulder, a left shoulder internal derangement, a rib fracture, a closed head injury, and nerve damage to his left arm, hand, and wrist. He further alleged that he had "incurred and will incur in the future, considerable expenses for hospital, doctor and medical care treatment, X rays, medicines and medical supplies, all to his financial detriment." In discovery, the plaintiff produced medical records and bills generated from medical treatment he sought with, inter alia, Dr. Andrew Caputo. The documents produced indicated that the plaintiff last consulted on or about March 22, 2011, with a medical provider for injuries sustained in the motor vehicle accident.

The plaintiff and Nilson agreed to submit the matter, including the issues of liability and damages, to binding arbitration and executed an arbitration agreement dated December 4, 2012. Under the terms of that agreement, the parties stipulated that the plaintiff's recovery from Nilson would be limited to a low of $0 and a high of $100,000, which number represented exhaustion of Nilson's automobile insurance policy limits. The parties agreed not to communicate the high-low parameters to the arbitrator.

On January 28, 2013, the arbitrator, Attorney Richard C. Tynan, held a hearing, during which the plaintiff presented evidence and testimony from witnesses regarding the "nature and extent of his damages—both economic and noneconomic." The plaintiff presented evidence that he might need future medical treatment, including surgery, as a result of the accident. The plaintiff did not refrain from presenting any evidence pertaining to his damages claim. On March 6, 2013, Attorney Tynan issued an award in which he found that the plaintiff had "sustained his burden of proving that he is entitled to fair, just and reasonable damages for those injuries he sustained through the negligence of the defendant, Neil Nilson." Attorney Tynan awarded the plaintiff the entirety of his claimed economic damages, $15,924, and noneconomic damages in the amount of $90,000, for a total award of $105,924. The parties executed a settlement and release agreement, and Nilson's insurance company paid the plaintiff $100,000, representing the limits of Nilson's policy.

The plaintiff thereafter filed the present action against Universal, his automobile insurance carrier, claiming that Nilson was underinsured at the time of the accident. In this action, the plaintiff again claims that he has suffered injuries as a result of Nilson's negligence and that he "has incurred and will incur in the future, considerable expenses for hospital, doctor and medical care treatment, X rays, medicines and medical supplies, all to his financial detriment." The nature and extent of the damages the plaintiff claims in the present action are "in essence, the same" as the nature and extent of the damages he claimed in his action against Nilson. The plaintiff did not elect to undergo surgery as a result of the accident, and he has not received any medical treatment or incurred any additional medical expenses since March 22, 2011. On December 1, 2015, Universal filed a motion for summary judgment on the ground of collateral estoppel, which the court granted; see footnote 1 of this opinion; on May 11, 2016. This appeal followed.

Before addressing the plaintiff's claim, we note the applicable standard of review. " Practice Book [§ 17–49 ] provides that summary 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.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... [T]he scope of our review of the trial court's decision to grant the [defendant's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Mierzejewski v. Brownell , 152 Conn.App. 69, 78–79, 97 A.3d 61 (2014). Additionally, the applicability of the doctrine of collateral estoppel presents a question of law, over which this court's review is also plenary. State v. Bacon Construction Co. , 160 Conn.App. 75, 85, 124 A.3d 941, cert. denied, 319 Conn. 953, 125 A.3d 532 (2015).

On appeal, the plaintiff claims that the trial court erred in granting summary judgment because it improperly concluded that the doctrine of collateral estoppel barred him from relitigating in this action against Universal the amount of damages awarded to him by Attorney Tynan in the prior arbitration proceeding. We disagree.

We first set forth the general applicable law of collateral estoppel. "[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim.... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.... To assert successfully the doctrine of issue preclusion, therefore, a party must establishthat 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.) Doran v. First Connecticut Capital, LLC , 143 Conn.App. 318, 321, 70 A.3d 1081, cert. denied, 310 Conn. 917, 76 A.3d 632 (2013). "For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." (Internal quotation marks omitted.) Pollansky v. Pollansky , 162 Conn.App. 635, 651, 133 A.3d 167 (2016).

Under Connecticut law, mutuality of parties is not a prerequisite to the invocation of collateral estoppel. Id., at 652–53, 133 A.3d 167 ; see also Aetna Casualty & Surety Co. v. Jones , 220 Conn. 285, 299–303, 596 A.2d 414 (1991). Additionally, collateral estoppel "may be invoked offensively, in support of a party's affirmative claim against his opponent, or defensively, in opposition to his opponent's affirmative claim against him.... [Defensive collateral estoppel] occurs when a defendant in a second action seeks to prevent a plaintiff from relitigating an issue that the plaintiff had previously litigated in another action against the same defendant or a different party.... It is well established that privity is not required in the context of the defensive use of collateral estoppel ...."³ (Internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc. , 173 Conn.App. 630, 656, 164 A.3d 731, cert. granted on other grounds, 327 Conn. 963, 964, 965, 966, ––– A.3d –––– (2017).

"[O]rdinarily a factual determination made in final and binding arbitration is entitled to preclusive effect." (Internal quotation marks omitted.) Marques v. Allstate Ins. Co. , 140 Conn.App. 335, 340, 58 A.3d 393 (2013) ; see also Genovese v. Gallo Wine Merchants, Inc. , 226 Conn. 475, 483, 628 A.2d 946 (1993).⁴ Thus, a court properly may grant summary judgment on the ground that the plaintiff's claims are barred by the doctrine of collateral estoppel on the basis of a prior arbitration award. See, e.g., Burton v. Stamford , 127 Conn.App. 651, 653, 18 A.3d 590, cert. denied, 301 Conn. 915, 19 A.3d 1261 (2011).

We also briefly set forth the underinsured motorist statutory and regulatory scheme, pursuant to which "[a]n insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements ...." General Statutes § 38a–336(b). "The limit of the insurer's liability may not be less than the applicable limits for...