[Connecticut Law Reporter] January 19, 1998
Volume 20, No. 17
Reporting Developments in Connecticut Law and the Full Text of Superior Court Decisions

HIGHLIGHTS OF THE OPINIONS REPORTED IN THIS ISSUE
An index, table of cases and table of statutes for the cases reported this week are presented at the back of this issue. Cumulative indexes and tables are presented monthly. The latest cumulative indexes and tables for this volume are located at the back of Issue No. 16. Cumulative indexes and tables for Volumes 1 through 19 are located at the back of each of those volumes. The bound volumes also contain tables of opinions authored by each judge.
Arbitration[TOP]
Violation of Public Policy - A Superior Court Holds that an Arbitration Award of Compensatory Time Payments to a Municipal Employee Based on a Collective Bargaining Agreement Does Not Violate Public Policy, Even Though the Municipality Never Approved the Practice of Paying Compensatory Time. Enforcement of an arbitration award ordering the payment of compensatory time to a retiring municipal employee pursuant to an existing practice under the authority of a collective bargaining agreement provision permitting the continuation of undefined "existing practices" does not violate public policy even though the specific practice of paying compensatory time was never approved by the municipality and will unexpectedly deplete public funds. Bridgeport v. Bridgeport City Supervisors (Skolnick, J.) 599
Bankruptcy and Foreclosure[TOP]
Mechanics Liens - A Superior Court Holds that Failure to File a Notice of Lis Pendens Within a Year of Perfecting a Mechanic's Lien Is a Jurisdictional Defect that Renders the Lien Invalid. The statutory requirement that a notice of lis pendens must be filed within a year of perfecting a mechanic's lien is jurisdictional. Therefore failure to file a lis pendens within the one-year period renders the mechanic's lien invalid and discharged as a matter of law. The plaintiff unsuccessfully argued that the defendant's failure to reschedule a continued hearing on the defendant's contested motion for reference to arbitration constituted unclean hands justifying the exercise of the court's equitable power to permit prosecution of the action in spite of the failure to file the notice. Wildman v. Cook (West, J.) 575
Corporations[TOP]
Professional Services Corporations - A Superior Court Holds that Becoming a Co-investor in a Real Estate Investment to Which Other Members of a Professional Services Corporation Provided Legal Services Does Not Expose an Investing But Nonadvising Member to Liability for Legal Malpractice. The fact that a member of a law firm organized as a professional service corporation became a co-investor in a real estate transaction for which other members served as legal counsel does not create an attorney/client relationship between the nonadvising attorney and the other investors. Russman v. Klebanoff (Teller, J.) 582
Criminal Law and Procedure[TOP]
Informants - The Appellate Court Holds that an Informant's Tip Need Not Be Corroborated Unless Necessary to Determine Reliability. Probable cause to arrest may be based solely on an uncorroborated tip from an informant if the tip is reliable; corroboration is necessary only if needed to determine whether the information is reliable. State v. Velasco, 47 Conn. App. 424 (O'Connell, C.J.) (CLJ 1/6/98) 47 Conn. App. 424
Family Law[TOP]
Recovery in Tort for Loss of the Marital Res - A Superior Court Holds that No Cause of Action Exists for Recovery for Loss of the "Marital Res." There is no cause of action for recovery of the "marital res." The plaintiff claimed that negligent psychiatric treatment provided by the defendant to the plaintiff's spouse caused the loss of the party's marriage. Jacoby v. Brinckerhoff (Moraghan, J.). The opinion also holds that a spouse cannot recover for loss of consortium in an action to which the other spouse is not a party, even if joinder of the primarily injured spouse is not possible 577
Longarm Jurisdiction Over a Court-appointed Guardian Ad Litem - A Superior Court Holds that Visiting a Family in Connecticut and Sending Mail and Making Telephone Calls to Connecticut Constitute Sufficient Minimum Contacts to Exercise Longarm Jurisdiction over a Nonresident, Court-appointed Guardian Ad Litem. Visiting once, sending mail and making telephone calls to Connecticut constitute sufficient minimum contacts to permit the assertion of jurisdiction under the Longarm Statute over a nonresident guardian ad litem appointed by the court in the plaintiffs' child custody matter in another state for a claim of fraudulent misrepresentation concerning the course of the foreign court proceedings during the guardian's sole visit to Connecticut. Whitney v. Taplin (Stodolink, J.). The opinion also holds that false statements concerning the course of court proceedings in the plaintiffs' child custody matter in another state constitutes a tortious act within Connecticut 610
Health Law[TOP]
Replevin Action for Recovery of Human Tissue Samples - A Superior Court Holds that Human Tissue Samples Taken from a Patient for Medical Purposes Belong to the Treating Physician Rather Than the Patient. Medical slides containing a patient's tissue samples taken for medical purposes belong to the treating physician rather than the patient and therefore may not be recovered by the patient in a replevin action. Cornelio v. Stamford Hospital (D'Andrea, J.) 589
Insurance[TOP]
Uninsured Motorist Coverage - Conversion Coverage - A Superior Court Holds that Optional, Enhanced "Conversion" Coverage May Be Issued Subject to the Same Exclusions and Limitations as Regular Uninsured Coverage. "Conversion" uninsured motorist coverage, which is optional, enhanced coverage in an amount equal to the insured's actual damages regardless of the relative levels of the insured's and tortfeasor's coverage and that does not require a deduction for amounts recovered from the tortfeasor, CGS §38a-336a, may be issued subject to the same limitations expressly authorized for regular underinsured motorist coverage under CGS §38a-336, including an exclusion of coverage when the claimant is occupying an underinsured vehicle owned by the claimant (the "owned vehicle" exclusion). Fleet National Bank v. Aetna Insurance Co. (Teller, J.) 594
Coverage - Conditions Precedent - A Superior Court Holds that Whether Failure to Attend an Independent Medical Examination Constitutes Refusal to Submit to an IME Cannot Be Decided on a MSJ. Whether an insured's failure to either cancel or attend an independent medical examination scheduled by an insurer followed by a request to reschedule the examination constitutes refusal to submit to an examination in breach of a condition precedent to recovery under the policy raises a question of fact that cannot be decided on a motion for summary judgment. The opinion raises without deciding the issue of whether lack of prejudice would preserve the rights of an insured who refuses to submit to an IME but notes that if so, the insured would have the burden of proving lack of prejudice. Fleming v. State Farm Mutual Automobile Insurance Co. (Aurigemma, J.) 608
Law of Lawyering[TOP]
Ex Parte Communications - The Appellate Court Holds that an Order to Pay Attorney's Fees Issued In Response to an Ex Parte Request Without Providing Notice to the Requesting Attorney's Client Is Void. An attorney's private request that a workers' compensation commissioner order a former client to pay attorney's fees for representation before the commission constitutes an improper ex parte communication. Therefore an order issued in response to the request without providing the client notice or a hearing is unenforceable. LaPia v. Stratford, 47 Conn. App. 391 (Foti, J.) (CLJ 12/30/97) 47 Conn. App. 391
Professional Services Corporations - A Superior Court Holds that Becoming a Co-investor in a Real Estate Investment to Which Other Members of a Professional Services Corporation Provided Legal Services Does Not Expose an Investing But Nonadvising Member to Liability for Legal Malpractice. See the discussion above under "Corporations" of Russman v. Klebanoff (Teller, J.) holding that the fact that a member of a law firm organized as a professional service corporation became a co-investor in a real estate transaction for which other members served as legal counsel does not create an attorney/client relationship between the nonadvising attorney and the other investors 582
Municipal Corporations[TOP]
Violation of Public Policy - A Superior Court Holds that an Arbitration Award of Compensatory Time Payments to a Municipal Employee Based on a Collective Bargaining Agreement Permitting the Continuation of Existing Practices Does Not Violate Public Policy, Even Though the Municipality Never Approved the Practice of Paying Compensatory Time.Bridgeport v. Bridgeport City Supervisors (Skolnick, J.), also discussed above under "Arbitration," holds that enforcement of an arbitration award ordering the payment of compensatory time to a retiring municipal employee pursuant to an existing practice under the authority of a collective bargaining agreement provision permitting the continuation of undefined "existing practices" does not violate public policy even though the specific practice of paying compensatory time was never approved by the municipality and will unexpectedly deplete public funds 599
Housing Authorities - A Superior Court Holds that a Municipal Housing Authority Can Be Sued for Failure to Provide Proper Notice of a Public Hearing Prior to Acquiring Property for a Housing Project by Any Party Who Is Classically Aggrieved. Although CGS §8-44, which requires a municipal housing authority to provide notice and a public hearing prior to acquiring property for a proposed housing project, does not establish a statutory cause of action against a housing authority for failure to provide proper notice, an action can be brought by any party establishing classical aggrievement. Edgewood Village v. New Haven Housing Authority (Sullivan, W., J.) 602
Procedure[TOP]
Summary Judgment - Res Judicata Effect of a Federal Judgment on Pendent State Claims - The Appellate Court Holds that a Trial Court Has Discretion to Permit the Filing of More Than One Motion for Summary Judgment; and a Federal Judgment Dismissing Without an Opinion a Complaint Asserting Both a Federal and a Pendent State Claim Does Not Bar Reassertion of the State Claim in a State Court. A trial court has discretion to permit the filing of more than one motion for summary judgment. Fiaschetti v. Nash Engineering Co., 47 Conn. App. 443 (Spear, J.) (CLJ 1/13/98). The opinion also holds that a federal judgment dismissing without an explanatory opinion a complaint asserting both a federal and a state cause of action on a motion raising both lack of merit to the federal claim and lack of pendent jurisdiction over the remaining state claim, should be construed as dismissing the state claim for lack of jurisdiction before ruling on the federal count and not as a dismissal of both counts, because a federal court does not normally rule on pendent issues without articulating its grounds for jurisdiction. Therefore the judgment of dismissal in the federal action is not entitled to res judicata effect that would bar the reassertion of the state cause of action in a later suit in state court 47 Conn. App. 443
Sequence of Pleadings - A Superior Court Holds that Filing a Motion to Dissolve a Temporary Injunction Before Filing a Motion to Dismiss Does Not Waive Objections to Jurisdiction.Edgewood Village v. New Haven Housing Authority (Sullivan, W., J.), also discussed above under "Municipal Corporations," holds that filing a motion to dissolve a temporary injunction before filing a motion to dismiss does not operate as a waiver of a defendant's objection to personal jurisdiction because P.B. §112, which sets forth the order in which pleadings are to be filed, does not mention a motion to dissolve a temporary injunction in the required order of pleading 602
Longarm Jurisdiction Over a Court-appointed Guardian Ad Litem - A Superior Court Holds that Visiting a Family in Connecticut and Sending Mail and Making Telephone Calls to Connecticut Constitute Sufficient Minimum Contacts to Exercise Longarm Jurisdiction over a Foreign Court-appointed Guardian Ad Litem.Whitney v. Taplin (Stodolink, J.), also discussed above under "Family Law," holds that visiting a family once in Connecticut and sending mail and making telephone calls to Connecticut constitute sufficient minimum contacts to permit the assertion of jurisdiction under the Longarm Statute over a nonresident guardian ad litem appointed by the court in the plaintiffs' child custody matter in another state for a claim of fraudulent misrepresentation concerning the course of the foreign court proceedings during the guardian's sole visit to Connecticut 610
Real Property[TOP]
Condominium Act - A Superior Court Holds that a Bylaw Entitling the Declarant to Appoint Two of the Five Members of the Board of Directors of a Condominium While 10% of the Units Are Unsold Violates the Common Interest Ownership Act. A bylaw in a declaration for a condominium association which entitles the declarant to designate two of the five members of the board of directors so long as the declarant owns 10% of the units is void as inconsistent with those provisions of the Connecticut Common Interest Ownership Act which restrict the declarant's control of the association after 60% of the units have been sold and thereafter delegate to the unit owners the power to elect the board of directors. Cerrone v. Views of Long Hill Condominium Association, Inc. (Skolnick, J.) 580
Social Services[TOP]
Title XIX - A Superior Court Holds that the Principal in a Trust in Which the Trustee May Distribute Income But Not Principal to the Settlor Is Not Includable as an Asset Available to the Settlor for Purposes of Determining Eligibility for Medicaid Assistance. The principal of a trust in which the trustee has discretion to distribute income but not principal to the settlor may not be considered an asset available to the settlor for purposes of determining eligibility for medicaid assistance, even if the settlor retains the right to designate those descendants entitled to receive the principal at the settlor's death. The opinion contains the language of the trust found to be sufficient to avoid being included as an asset available to the settlor. Ahern v. Thomas (DiPentima, J.) 586
Taxation[TOP]
Correction of Clerical Errors - A Superior Court Holds that Revaluation to Correct an Erroneous Assumption that Several Lots Were Being Merged Is a "Clerical" Error Which Can Be Retroactively Corrected by a Municipal Assessor. The revaluation of property by an assessor after being notified by the owner that several individual lots had been incorrectly merged constitutes a "clerical omission or mistake" which can be retroactively corrected pursuant to CGS §12-60. Cov-Mill Estates, L.L.C. v. Coventry Board of Tax Review (Rittenband, J.) 597
Torts[TOP]
Defective Highway Act - The Appellate Court Holds that a Municipality Must Have Notice of the Particular Defect Causing the Claimant's Injury and Not Merely Notice of Conditions Likely to Produce the Defect. Liability under the Defective Highway Act requires prior notice of the particular defect causing the injury and not merely notice of conditions likely to produce such a defect. Therefore a municipality's knowledge that water generally flows across a particular sidewalk and that the temperature had dropped below freezing is not sufficient notice of an actual patch of ice on the sidewalk. Pajor v. Wallingford, 47 Conn. App. 365 (Shea, J.) (CLJ 12/30/97). The opinion also holds that the economic damages portion of an insured's jury award must be reduced by the amount of medical benefits received under an insurance policy containing a subrogation provision, even though CGS §52-225a excepts payments for which a right of subrogation exists, because CGS §52-225c prohibits an insurer from recovering medical benefits from the proceeds of a personal injury claim 47 Conn. App. 365
Loss of Consortium - A Superior Court Holds that Loss of Consortium Cannot Be Asserted in an Independent Action, Even if Joinder of the Primarily Injured Spouse Is Not Possible.Jacoby v. Brinckerhoff (Moraghan, J.), also discussed above under "Family Law," holds that a spouse cannot recover for loss of consortium in an action to which the other spouse is not a party, even if joinder of the primarily injured spouse is not possible. One spouse was seeking to recover from a psychiatrist based on allegations that negligent psychiatric treatment of the plaintiff's spouse resulted in the loss of the party's marriage. The opinion also holds that there is no cause of action for recovery of the "marital res" 577
Legal Malpractice - A Superior Court Holds that Becoming a Co-investor in a Real Estate Investment to Which Other Members of a Professional Services Corporation Provided Legal Services Does Not Expose an Investing But Nonadvising Member to Liability for Legal Malpractice. See the discussion above under "Corporations" and "Law of Lawyering" of Russman v. Klebanoff (Teller, J.) holding that the fact that a member of a law firm organized as a professional service corporation became a co-investor in a real estate transaction for which other members served as legal counsel does not create an attorney/client relationship between the nonadvising attorney and the other investors 582
Replevin Action for Recovery of Human Tissue Samples - A Superior Court Holds that Human Tissue Samples Taken from a Patient for Medical Purposes Belong to the Treating Physician Rather Than the Patient.Cornelio v. Stamford Hospital (D'Andrea, J.), also discussed above under "Health Law," holds that medical slides containing a patient's tissue samples taken for medical purposes belong to the treating physician rather than the patient and therefore may not be recovered by the patient in a replevin action 589
Trusts and Estates[TOP]
Title XIX - A Superior Court Holds that the Principal in a Trust in Which the Trustee May Distribute Income But Not Principal to the Settlor Is Not Includable as an Asset Available to the Settlor for Purposes of Determining Eligibility for Medicaid Assistance.Ahern v. Thomas (DiPentima, J.), also discussed above under "Social Services," holds that the principal of a trust in which the trustee has discretion to distribute income but not principal to the settlor may not be considered an asset available to the settlor for purposes of determining eligibility for medicaid assistance, even if the settlor retains the right to designate those descendants entitled to receive the principal at the settlor's death. The opinion contains the language of the trust found to be sufficient to avoid being included as an asset available to the settlor 586
Workers' Compensation[TOP]
Ex Parte Communications - The Appellate Court Holds that an Order to Pay Attorney's Fees Issued In Response to an Ex Parte Request Without Providing Notice to the Requesting Attorney's Client Is Void.LaPia v. Stratford, 47 Conn. App. 391 (Foti, J.) (CLJ 12/30/97), also discussed above under "Law of Lawyering," holds that an attorney's private request that a workers' compensation commissioner order a former client to pay attorney's fees for representation before the commission constitutes an improper ex parte communication. Therefore an order issued in response to the request without providing the client notice or a hearing is unenforceable 47 Conn. App. 391
Zoning[TOP]
Injunctive Relief - Exhaustion of Remedies - A Superior Court Holds that Property Owners Need Not Exhaust Administrative Remedies Before Bringing an Action to Enjoin a Neighbor from Continuing Construction Pursuant to a Building Permit Issued Without First Obtaining a Required Variance.Niesyn v. Bridgeport (Skolnick, J.) holds that an action brought by neighboring property owners seeking to enjoin further construction on a project for which a building permit was allegedly illegally issued by a local building department without first requiring the owner to obtain a necessary variance, falls within the exception to the exhaustion doctrine permitting anyone materially damaged by a violation of a zoning ordinance to seek injunctive relief restraining the violation without exhausting administrative remedies 605