Saint Bernard School of Montville, Inc. v. Bank of America ( 2014 )

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SAINT BERNARD SCHOOL OF MONTVILLE, INC. v.
BANK OF AMERICA
(SC 19174)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 24—officially released August 5, 2014
Gerald L. Garlick, with whom, on the brief, was Kath-
erine E. Abel, for the appellant (defendant).
Cassie N. Jameson, with whom, on the brief, was
Michael D. Colonese, for the appellee (plaintiff).
Jeffrey J. Mirman and David J. Wiese filed a brief for
the Connecticut Bankers Association as amicus curiae.
Opinion
McDONALD, J. The plaintiff, Saint Bernard School
of Montville, Inc., commenced this action against the
defendant, Bank of America, after the defendant refused
the plaintiff’s demand to return more than $800,000 that
one of the plaintiff’s employees had obtained as a result
of the defendant’s actions permitting that employee to
open a bank account that the plaintiff had not author-
ized, and to deposit into that account more than 1200
checks originating from, or intended to be deposited
into, the plaintiff’s bank account with the defendant,
and then allowing that employee to withdraw those
funds. The defendant appeals1 from the trial court’s
judgment in favor of the plaintiff on claims of: breach
of contract; violations of article 3 of the Uniform Com-
mercial Code (UCC), General Statutes § 42a-3-101 et
seq., and violations of article 4 of the UCC, General
Statutes § 42a-4-101 et seq.; negligence; and common-
law conversion. The defendant’s principal claims on
appeal are: (1) the trial court improperly precluded the
jury from considering deposit account agreements on
the ground that such agreements violate public policy;
and (2) the jury’s determination that certain statutes of
limitations were tolled due to both a continuous course
of conduct and a special relationship was based on an
improper jury instruction and was unsupported by the
evidence under the proper legal standard. We decline
to address the merits of the first issue due to inadequate
briefing on whether the purported improper ruling was
harmful. We further conclude that, although the defen-
dant is entitled to limited relief on its tolling claim as
it pertains to damages for violation of the UCC, the
defendant is not entitled to a new trial on the basis of
any other claim asserted on appeal. Accordingly, we
affirm in part and reverse in part the judgment of the
trial court.
The jury reasonably could have found the following
facts. The plaintiff is a Catholic school located in Mont-
ville. In 1985, the plaintiff opened a bank account for
its operating fund at the Montville branch of one of the
defendant’s predecessors (Montville branch).2 A Mont-
ville branch employee had the plaintiff complete a cer-
tificate of authority for the account, an important
document that the defendant requires that indicates
who has been authorized by the account holder to ‘‘sign,
endorse or otherwise authorize payments, transfers or
withdrawals . . . .’’ The plaintiff periodically executed
new certificates to modify the names of persons who
held such authority. Four names were listed on the
certificate executed in 2001, along with their titles:
Nadine McBride, business manager; Roy Dado, princi-
pal; James Venditto, Jr., vice principal; and Howard
Bennett, superintendent. In 2003, the plaintiff executed
a new certificate to replace Dado’s name with the names
of two persons acting as principals. The certificate of
authority for the operating fund account was main-
tained in the files of the Montville branch manager. A
signature card for persons authorized to transact busi-
ness on that account was maintained in a vault area
near the tellers. Similar information was on file for
other accounts opened on behalf of the plaintiff at the
Montville branch.
In 1998, the plaintiff hired Salvatore Licitra as a sub-
stitute bus driver and later promoted him to busing
coordinator. Licitra’s responsibilities gradually
increased to include work in the plaintiff’s business
office. Licitra eventually was given access to the busi-
ness office’s computers and mail, as well as keys to
the building in which the office was located. Although
Licitra often delivered checks to the Montville branch
that McBride had prepared for deposit, the plaintiff
never listed Licitra as a person authorized to transact
business on the operating fund account, or any other
of its accounts with the defendant.
Nonetheless, in November, 2002, Donna Napolitano,
the Montville branch manager, opened up an account at
Licitra’s request, using the plaintiff’s tax identification
number and bearing the name ‘‘Saint Bernard’s High
School Norwich Diocesan Camp Sunshine, c/o Sal Lic-
itra’’ (Camp Sunshine account). Napolitano opened the
Camp Sunshine account with a check payable to the
plaintiff, marked ‘‘for deposit only,’’ in the amount of
$62.50. Napolitano did not obtain a certificate of author-
ity or a signature card for the account, even though she
knew that Licitra was not an authorized signer on the
plaintiff’s accounts and merely acted as a ‘‘courier’’ for
the plaintiff when it needed to transact business with
the defendant at the Montville branch. Instead, Napo-
litano falsely indicated on paperwork filled out in con-
nection with the opening of the Camp Sunshine account
that Licitra’s signature was on file and noted ‘‘unlink’’
on account documents.
Three months after opening the account, Licitra had
the defendant change the mailing address for the Camp
Sunshine account from the plaintiff’s business address
to his residential address. In contravention of its poli-
cies, the defendant did not obtain the plaintiff’s authori-
zation to make the address change.
From November, 2002, until September, 2006, Licitra
deposited $823,776.96 into the Camp Sunshine account
and withdrew funds just short of that amount. The
deposits almost exclusively were in the form of checks
that either: (1) were drawn on the plaintiff’s operating
fund account and made payable to legitimate third party
vendors, such as The Connecticut Light and Power
Company; or (2) originated from third parties and were
made payable to the plaintiff.3 None of the checks origi-
nating from the plaintiff’s operating fund account had
been endorsed by the payee, the third party vendor. A
majority of the checks payable to the plaintiff contained
a restrictive endorsement, indicating that the checks
only should be deposited into the plaintiff’s operating
fund account; the others contained no endorsement.
Thus, the deposit of these checks, as presented to the
defendant, into the Camp Sunshine account did not
conform to the defendant’s own policies and standard
bank practices.4 In addition, Licitra made cash with-
drawals for large sums, in amounts up to $22,000, which
also should have required further scrutiny under the
defendant’s policies. Although Montville branch
employees on occasion raised questions regarding the
withdrawals, those questions were dismissed and the
withdrawals were summarily approved by man-
agement.
McBride was unaware of the Camp Sunshine account
until sometime after September, 2006, just after Licitra
had left the plaintiff’s employ due to the elimination
of his position. Prior to that time, McBride regularly
reviewed and reconciled the account statements for the
operating fund account without noticing any unautho-
rized transactions or missing funds. Neither Napolitano
nor any other bank employee ever mentioned the Camp
Sunshine account to McBride or anyone else authorized
on the plaintiff’s operating fund account. In 2003, 2004,
2005, and 2006, the plaintiff’s accountants sent to the
Montville branch a ‘‘Standard Form to Confirm Account
Balance Information with Financial Institutions,’’ in
which the defendant was requested to list any other
accounts of which it was aware that were not listed.
Although the defendant returned the forms to the
accountants, it did not add the Camp Sunshine account
to any of them, despite the fact that the account bore
the plaintiff’s name, the account was under the plain-
tiff’s tax identification number, and its file was main-
tained with the other files for the plaintiff’s accounts.
In a fortuitous set of events that caused McBride to
follow up on a vendor’s payment, she discovered that
the vendor never had received a check made out to
it even though the check had cleared the plaintiff’s
operating fund account. After contacting the defendant,
the plaintiff eventually discovered the existence of the
Camp Sunshine account.
After the defendant refused the plaintiff’s demand to
return the funds that Licitra had funneled through the
Camp Sunshine account to himself, the plaintiff com-
menced this action. The plaintiff asserted five counts
in the operative complaint, each of which it alleged
constituted a continuing course of conduct and breach
of a continuing duty: (1) breach of contract; (2) viola-
tions of General Statutes §§ 42a-4-205 and 42a-4-401 for
the improper deposit of checks into the Camp Sunshine
account that were drawn on the plaintiff’s operating
fund account or other accounts and not properly pay-
able to the Camp Sunshine account; (3) conversion in
violation of General Statutes §§ 42a-3-206 and 42a-3-420
due to the deposit of checks into the Camp Sunshine
account that were payable to the plaintiff; (4) negli-
gence; and (5) common-law conversion for the
improper deposit of checks into the Camp Sunshine
account that were issued by the plaintiff or payable to
the plaintiff and that were not endorsed in a manner
that would authorize deposit into that account.5 The
defendant filed an answer denying the substance of the
allegations and asserted several special defenses, the
following of which are relevant to this appeal: (1) the
plaintiff is barred from obtaining relief on any of its
claims because it failed to report the unauthorized
transactions within the time period prescribed in
deposit account agreements to which the plaintiff was
bound; (2) none of the claims except breach of contract
were brought within the period prescribed by statute;
and (3) the plaintiff was contributorily negligent.
At trial, the jury was permitted to hear evidence
regarding all of the special defenses. After the close of
evidence, however, the court struck the deposit account
agreements and all related testimony on public policy
grounds, a matter that we discuss further in part I of
this opinion. Thereafter, the jury rendered a verdict in
favor of the plaintiff on each of the counts and awarded
$823,776.96 in total compensatory damages.6 In its inter-
rogatories, the jury found, inter alia, that the applicable
limitations periods had been tolled due to both a contin-
uing course of conduct and a special relationship
between the parties, that the plaintiff’s loss was caused
in part by its own contributory negligence in the amount
of 5 percent, and that the plaintiff was entitled to pre-
judgment interest. The trial court subsequently denied
the defendant’s motions to set aside the verdict and for
remittitur and granted the plaintiff’s motion for prejudg-
ment interest. After the trial court rendered judgment
in accordance with the jury’s verdict, the defendant
appealed from the judgment.
The defendant raises four claims on appeal: (1) the
trial court improperly precluded the jury from consider-
ing the deposit account agreements; (2) the plaintiff
could not prevail on its breach of contract claim
because it failed to prove the existence of a contract; (3)
each check was subject to its own statute of limitations,
which began to run on the date of the check and was not
tolled for any reason; and (4) the trial court improperly
denied the defendant’s motion for remittitur. We con-
clude that the defendant is entitled only to limited relief
on the third claim, insofar as the jury found a basis to
toll the plaintiff’s claims under the UCC.
I
We begin with the defendant’s claim that the trial
court improperly precluded the jury from considering
the deposit account agreements. Those agreements,
which slightly varied in their terms over the pertinent
period, substantively provide that an account holder
agrees to review monthly account statements and other
materials accompanying the statement and to look for
unauthorized transactions and errors. The account
holder further agrees that, if it finds such transactions
or errors upon review, it will notify the defendant within
a specified time period, either thirty or sixty days after
the defendant sent the statement. If notification is not
provided as prescribed, the account holder cannot seek
any relief from the defendant. The trial court ruled
that the agreements: (1) offend the UCC, specifically
General Statutes § 42a-4-103, which precludes a bank
from disclaiming responsibility for its lack of good faith
or failure to exercise ordinary care; and (2) violate
public policy as a disclaimer of liability under the fac-
tors that this court identified in Hanks v. Powder Ridge
Restaurant Corp., 276 Conn. 314, 330, 885 A.2d 734
(2005).
On appeal, the defendant claims that the trial court
misconstrued the agreements as disclaimers of liability
and that the agreements are not void under either basis
cited by the trial court. In response, the plaintiff con-
tends that the agreements are unenforceable on both
grounds, and that, even if they are enforceable, the
defendant failed to demonstrate that it was harmed by
the court’s decision precluding them. For the reasons
set forth subsequently in this opinion, we conclude that
the defendant failed to brief an essential aspect of its
claim—whether the trial court’s ruling was harmful.
Because such harm is not self-evident in light of the
facts and procedural posture relative to this issue, the
defendant is not entitled to review of this claim.
Examination of the parties’ briefs reveals the follow-
ing facts. The defendant argued in its main brief to
this court that the question of whether the trial court
improperly refused to allow the jury to consider the
deposit account agreements was subject to plenary
review. The defendant explained at length why it
believed the trial court’s decision was improper, but
failed to address whether the ruling was harmful. In its
responsive brief, the plaintiff contended that the trial
court’s ruling was an evidentiary matter subject to
review under the abuse of discretion standard. The
plaintiff further contended that the defendant must
show that the ruling was not only improper but also
harmful, meaning that the ruling likely affected the ver-
dict. The plaintiff enumerated several reasons why the
defendant could not demonstrate such harm.7 In its
reply brief, the entirety of the defendant’s response to
this issue was as follows: ‘‘As this was not an evidentiary
issue, there is therefore no issue of whether the trial
court’s ruling was both wrong and harmful. The legal
conclusion reached by the trial court is subject to ple-
nary review. Even if there were an issue of whether
the ruling that the agreements were void and unen-
forceable was harmful, the trial court’s ruling was
clearly harmful as it deprived the jury of the opportu-
nity to even consider the deposit account agreements
and the effect those agreements would have on the
plaintiff’s claims.’’ (Emphasis added.) The defendant
did not elaborate on this matter further at oral argument
before this court.
It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. See Wiseman v. Arm-
strong, 295 Conn. 94, 106–10, 989 A.2d 1027 (2010)
(explaining concerns of judicial economy and equity
that underlie requirement of showing that error is harm-
ful in order to be entitled to new trial). The harmfulness
of an improper ruling is material irrespective of whether
the ruling is subject to review under an abuse of discre-
tion standard or a plenary review standard. See id.,
109–10 (citing various types of legal claims to which
court has applied harmless error review); Santopietro
v. New Haven, 239 Conn. 207, 216, 682 A.2d 106 (1996)
(‘‘[w]here claims of trial court impropriety have been
properly preserved and, therefore, are entitled to ple-
nary review, we determine whether the ruling of the
trial court is legally correct and, if it is not, whether
the error was likely to have affected the verdict’’); see,
e.g., PSE Consulting, Inc. v. Frank Mercede & Sons,
Inc., 267 Conn. 279, 291, 295, 838 A.2d 135 (2004) (con-
cluding, after conducting plenary review, that defendant
could not prevail because any error from legally
improper instruction was harmless); Doyle v. Kamm,
133 Conn. App. 25, 39–42, 35 A.3d 308 (2012) (conclud-
ing, after conducting plenary review of ruling preclud-
ing certain evidence, that plaintiff could not prevail in
absence of record establishing harm from ruling). When
the ruling at issue is not of constitutional dimensions,
the party challenging the ruling bears the burden of
proving harm. See Downs v. Trias, 306 Conn. 81, 94,
49 A.3d 180 (2012).
In the present case, the defendant has done nothing
more than state a summary conclusion as to harm. It
would be entitled to a new trial, therefore, only if the
harmfulness of the trial court’s ruling is so self-evident
as to make briefing unnecessary. We conclude that,
although the deposit account agreements were asserted
as a special defense to all counts in the complaint, any
harm from precluding the jury’s consideration of them
is not self-evident given the record before us as to
this issue.
Significantly, the trial court’s ruling excluding the
deposit account agreements was not made until after
the close of evidence, just before the parties’ closing
arguments and the trial court’s charge to the jury.8 Thus,
the defendant presented all of the evidence that it would
have, had the court not belatedly struck the agreements
and all references thereto. As a special defense, it was
the defendant’s burden to prove that these agreements
were part of its contract with the plaintiff and that the
plaintiff had failed to satisfy the terms of the
agreements. Leonetti v. MacDermid, Inc., 310 Conn.
195, 215, 76 A.3d 168 (2013). The defendant offered into
evidence as full exhibits the deposit account
agreements effective in 2002, 2004, 2005, and 2006, with
the relevant provision read aloud to the jury. The defen-
dant had the opportunity to elicit testimony through
both direct and cross-examination regarding the plain-
tiff’s obligations and efforts to review the operating
fund account statements.9 In presenting its own case,
the defendant failed to produce a witness to testify that
a reasonable examination of the account statements
and accompanying materials would have revealed some
or all of the unauthorized transactions. The defendant
also failed to put into evidence any of the operating
fund account statements. In its cross-examination of
the plaintiff’s witnesses, the defendant elicited no testi-
mony to discredit McBride’s testimony that she had
regularly reviewed and reconciled the account state-
ments without finding anything of concern. With
respect to checks originating from the plaintiff’s
operating fund account, the defendant did elicit testi-
mony regarding McBride’s procedure for issuing checks
to third party vendors, but none of that testimony
tended to show that McBride would have discovered
from a review of the account statements that these
checks were unauthorized transactions. McBride’s tes-
timony suggested that Licitra had created false or dupli-
cate invoices in the plaintiff’s accounts payable system,
for which McBride had authorized the issuance of
checks. Thus, McBride’s review of the statements
revealed that a check that she had intended to issue
for an amount that she had approved was debited from
the plaintiff’s operating fund account as she had
expected. Although McBride admitted that she had not
examined the back of each check to see how it was
endorsed in the course of her review, a third party’s
deposit of a check lacking that party’s endorsement
would not necessarily indicate that the check had not
been received by the payee. McBride testified that no
vendor had ever called to complain that it had not
received payment due after a check for that vendor had
been issued and cleared the plaintiff’s account. With
respect to checks payable to the plaintiff from third
parties, no testimony was elicited regarding these spe-
cific transactions. Of course, McBride could not have
reviewed those checks because presumably they were
delivered to Licitra along with the Camp Sunshine
account statements reflecting their deposit therein.
The harmfulness of the trial court’s ruling, if
improper, is also not self-evident in light of the jury’s
verdict on the defendant’s special defense of contribu-
tory negligence. The defendant asserted eight specific
allegations as to how the plaintiff was contributorily
negligent, each of which was included in the court’s
charge to the jury.10 The last of those allegations was
that the plaintiff had ‘‘failed to review bank statements
that were sent to the plaintiff by the defendant, which
bank statements would have alerted the plaintiff to the
alleged unauthorized transactions and alleged unautho-
rized account.’’ Thus, the defendant was free to, and
did, argue to the jury the substance of the plaintiff’s
obligations under the deposit account agreements, but
in the context of a different special defense. The jury,
however, found the plaintiff only 5 percent contributor-
ily negligent in light of all eight allegations. This finding
suggests that the jury did not conclude that, had the
plaintiff exercised reasonable care in reviewing its
statements and accompanying materials, it would have
discovered the unauthorized transactions.
In light of these facts, we cannot conclude that the
harm from the claimed improper ruling is so self-evident
as to relieve the defendant of its obligation to brief this
issue. ‘‘We repeatedly have stated that [w]e are not
required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.) Citibank, N.A. v. Lindland, 310 Conn. 147,
165, 75 A.3d 651 (2013). Therefore, the defendant is not
entitled to review of this claim on the merits. Because
we conclude hereinafter that the defendant is not enti-
tled to a new trial on the basis of any other claim
advanced on appeal, we decline to opine on whether
the deposit account agreements are void as contrary
to public policy, either generally or under the particular
circumstances highlighted by the plaintiff, i.e., where
the jury has determined that the defendant committed
common-law conversion.
II
We next turn to the defendant’s claim that the plaintiff
was not entitled to prevail on its breach of contract
claim because it failed to prove that a contract existed
between the parties. The defendant contends that the
only two documents offered by the plaintiff as proof
of that contract, the 2001 and 2003 certificates of author-
ity for the operating fund account, were insufficient to
establish that fact. Specifically, the defendant asserts
that these documents are insufficient because they did
not reflect an offer and acceptance or certain essential
terms—the name of the bank, persons authorized to
act on behalf of the plaintiff, and obligations imposed
on the defendant. We conclude that the evidence was
sufficient to support the jury’s finding that a contract
existed.
‘‘In reviewing the jury’s verdict, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. . . . The verdict will be set aside and judgment
directed only if we find that the jury could not reason-
ably and legally have reached [its] conclusion.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Suffield Development Associates Ltd. Partnership v.
Society for Savings, 243 Conn. 832, 843, 708 A.2d
1361 (1998).
‘‘To form a valid and binding contract in Connecticut,
there must be a mutual understanding of the terms that
are definite and certain between the parties. . . . To
constitute an offer and acceptance sufficient to create
an enforceable contract, each must be found to have
been based on an identical understanding by the parties.
. . . So long as any essential matters are left open for
further consideration, the contract is not complete.
. . . A court may, however, enforce an agreement if
the missing terms can be ascertained, either from the
express terms or by fair implication. Presidential Capi-
tal Corp. v. Reale, 231 Conn. 500, 507–508, 652 A.2d 489
(1994).’’ (Citations omitted; internal quotation marks
omitted.) Geary v. Wentworth Laboratories, Inc., 60
Conn. App. 622, 627–28, 760 A.2d 969 (2000). ‘‘[W]hether
a term is essential turns on the particular circumstances
of each case.’’ (Internal quotation marks omitted.) Pan
Handle Realty, LLC v. Olins, 140 Conn. App. 556, 567,
59 A.3d 842 (2013). Moreover, ‘‘[i]n the case of a bilateral
contract, the acceptance of the offer need not be
express but may be shown by any words or acts which
indicate the offeree’s assent to the proposed bargain.’’
Bridgeport Pipe Engineering Co. v. DeMatteo Con-
struction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970);
see also Thames River Recycling, Inc. v. Gallo, 50 Conn.
App. 767, 798, 720 A.2d 242 (1998) (‘‘[t]he manifestation
of assent may be made wholly or partly by written or
spoken words or by other acts or by failure to act’’
[internal quotation marks omitted]).
It is broadly recognized that ‘‘[t]he relationship
between a bank and a depositor is a contractual rela-
tionship that is governed by the written agreement
between the parties. By opening an account and deliv-
ering funds constituting the deposit, one becomes a
‘depositor,’ and a contractual relationship is created.
The bank deposit creates a valid contract by which the
bank is obligated to repay the funds subject to its rules
and applicable statutes.’’ (Footnotes omitted.) 10 Am.
Jur. 2d 670, Banks and Financial Institutions § 711
(2009). ‘‘The deposit agreement, if any, signature card,
and checks drawn against an account are the contract
documents between a bank and its customer . . . .’’
(Footnotes omitted.) Id., § 714, p. 674; see also Das v.
Bank of America, N.A., 186 Cal. App. 4th 727, 741, 112
Cal. Rptr. 3d 439 (2010) (‘‘[t]he relationship of bank and
depositor is founded on contract . . . which is ordi-
narily memorialized by a signature card that the deposi-
tor signs upon opening the account’’ [internal quotation
marks omitted]).
In the present case, the plaintiff proffered not only
the certificates of authority, but also signature cards.
The certificates reflect an express agreement that the
plaintiff cannot hold the defendant liable for transac-
tions undertaken by those persons authorized to act on
the plaintiff’s behalf, and an implicit agreement that
the defendant may be liable if it allows others not so
authorized to access the plaintiff’s funds. Cf. Chase v.
Waterbury Savings Bank, 77 Conn. 295, 299–300, 59 A.
37 (1904) (‘‘[b]y accepting from the bank and using, as
she did, the deposit-book in which [a]rticles 13 and 15
of the by-laws were printed, the plaintiff assented to
these regulations and they became a part of the contract
of deposit for the protection of the bank and the
depositor, and were binding alike upon both’’); see also
Royal Arcanum Hospital Assn. of Kings County, Inc.
v. Herrnkind, 113 A.D. 3d 672, 673, 978 N.Y.S.2d 355
(2014) (‘‘[a] bank and its depositor have the contractual
relationship of debtor and creditor, with an implicit
understanding that the bank will pay out a customer’s
funds only in accordance with its instructions’’ [internal
quotation marks omitted]). Although no bank was
named on the 2001 certificate of authority, there was
evidence from which the jury reasonably could infer
that one of the defendant’s predecessors was the party
to that certificate. See Ubysz v. DiPietro, 185 Conn. 47,
51, 440 A.2d 830 (1981) (‘‘to form a contract . . . the
identities of the contracting parties must be reasonably
certain’’ [citations omitted; emphasis added]). In addi-
tion, the plaintiff presented testimonial and documen-
tary evidence of a depositor-bank relationship that
commenced on a date certain in 1985 and extended for
more than a twenty year period. See Menicocci v. Archer
National Bank of Chicago, 67 Ill. App. 3d 388, 391,
385 N.E.2d 63 (1978) (‘‘[a] debtor/creditor relationship
exists between the depositor and the bank . . . and
the express or implied contract between the depositor
and the bank controls their relationship’’ [citation omit-
ted; emphasis added]); University National Bank v.
Wolfe, 279 Md. 512, 514, 369 A.2d 570 (1977) (‘‘Almost
a hundred years ago this [c]ourt found that the relation-
ship between a bank and its depositor was perfectly
well settled. . . . The relationship, which has been uni-
versally recognized . . . is that of debtor and creditor,
with the rights between the parties considered as con-
tractual, and derived by implication from the banking
relationship unless modified by the parties.’’ [Citations
omitted; internal quotation marks omitted.]). Therefore,
we conclude that there was sufficient evidence from
which the jury reasonably could find that a contract
existed between the parties.
III
We next turn to the defendant’s challenge to the find-
ings contained in the jury’s interrogatories relating to
the tolling of the statute of limitations, namely, that the
defendant’s actions constituted a continuing course of
conduct and that a special relationship existed between
the parties.
We note at the outset that it is undisputed that tolling
is irrelevant to the plaintiff’s breach of contract claim,
as all of the transactions at issue occurred within the
six year period prescribed for such claims. See General
Statutes § 52-576. We further note that the jury awarded
the same amount of damages on the breach of contract
claim (count one), $818,620.54, as it did on the negli-
gence claim (count four), prior to a deduction for the
plaintiff’s contributory negligence, and on the common-
law conversion claim (count five). Therefore, it is
unnecessary for us to consider the defendant’s tolling
argument as it applies to counts four and five, as the
jury’s award on count one is duplicative of its award
on those counts. With respect to the plaintiff’s UCC
claims (counts two and three), however, the jury collec-
tively awarded $823,776.96, or $5156.42 more than it
awarded on the breach of contract claim. Therefore,
if the defendant prevails on its tolling argument with
respect to these counts, it could be entitled to relief to
the extent that the award on counts two and three
exceeds the award on count one. Accordingly, we con-
sider the defendant’s tolling argument solely as it
applies to the only claims on which we can afford it
any relief, albeit limited.11
The defendant claims that each check was subject
to its own statute of limitations, which began to run
on the date of the check and was not tolled for any
reason. It contends, inter alia, that there was insufficient
evidence to support the jury’s findings regarding toll-
ing.12 We conclude that, even construing all of the evi-
dence in the light most favorable to sustaining the
verdict, as we must; Carrol v. Allstate Ins. Co., 262
Conn. 433, 442, 815 A.2d 119 (2003); the evidence was
insufficient to support either of the jury’s findings in
support of tolling.
As we previously indicated, in determining whether
the evidence supports the jury’s findings, we review
the record to determine whether the jury ‘‘reasonably
and legally’’ could have reached its conclusion.
(Emphasis added.) Suffield Development Associates
Ltd. Partnership v. Society for Savings, supra, 243
Conn. 843. ‘‘[W]e have held that in order [t]o support
a finding of a continuing course of conduct that may
toll the statute of limitations there must be evidence
of the breach of a duty that remained in existence after
commission of the original wrong related thereto. That
duty must not have terminated prior to commencement
of the period allowed for bringing an action for such a
wrong. . . . Where we have upheld a finding that a
duty continued to exist after the cessation of the act
or omission relied upon, there has been evidence of
either a special relationship between the parties giving
rise to such a continuing duty or some later wrongful
conduct of a defendant related to the prior act.’’ (Inter-
nal quotation marks omitted.) Bednarz v. Eye Physi-
cians of Central Connecticut, P.C., 287 Conn. 158, 170,
947 A.2d 291 (2008); accord Sherwood v. Danbury Hos-
pital, 252 Conn. 193, 203, 746 A.2d 730 (2000).
Our appellate courts have not defined precisely what
constitutes a special relationship for purposes of tolling
because the existence of such a relationship will depend
on the circumstances that exist between the parties
and the nature of the claim at issue. Usually, such a
special relationship is one that is built upon a fiduciary
or otherwise confidential foundation. ‘‘A fiduciary or
confidential relationship is characterized by a unique
degree of trust and confidence between the parties, one
of whom has superior knowledge, skill or expertise and
is under a duty to represent the interests of the other.
. . . The superior position of the fiduciary or dominant
party affords him great opportunity for abuse of the
confidence reposed in him.’’ (Citations omitted.) Dun-
ham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123
(1987), overruled in part on other grounds by Santopie-
tro v. New Haven, supra, 239 Conn. 213 n.8; see, e.g.,
Konover Development Corp. v. Zeller, 228 Conn. 206,
218, 635 A.2d 798 (1994) (general and limited partners
bound in fiduciary relationship because partners act as
trustees toward each other and toward partnership);
Alaimo v. Royer, 188 Conn. 36, 37, 41, 448 A.2d 207
(1982) (fiduciary relationship between elderly disabled
woman and president of real estate investment club on
whom she had been encouraged to rely). ‘‘Fiduciaries
appear in a variety of forms, including agents, partners,
lawyers, directors, trustees, executors, receivers, bail-
ees and guardians.’’ Konover Development Corp. v.
Zeller, supra, 222. ‘‘The fact that one business person
trusts another and relies on [the person] to perform [his
obligations] does not rise to the level of a confidential
relationship for purposes of establishing a fiduciary
duty.’’ (Internal quotation marks omitted.) Hi-Ho
Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41,
761 A.2d 1268 (2000) ‘‘[N]ot all business relationships
implicate the duty of a fiduciary. . . . In the cases in
which this court has, as a matter of law, refused to
recognize a fiduciary relationship, the parties were
either dealing at arm’s length, thereby lacking a relation-
ship of dominance and dependence, or the parties were
not engaged in a relationship of special trust and confi-
dence.’’ (Internal quotation marks omitted.) Biller Asso-
ciates v. Peterken, 269 Conn. 716, 723–24, 849 A.2d 847
(2004). Accordingly, a mere contractual relationship
does not create a fiduciary or confidential relationship.
See Fichera v. Mine Hill Corp., 207 Conn. 204, 210, 541
A.2d 472 (1988).
In the context of a claim between a depositor and a
bank under the UCC, we conclude that it is appropriate
to look to cases considering whether such parties have
established a fiduciary or confidential relationship. It
is well settled, however, that ‘‘[g]enerally there exists
no fiduciary relationship merely by virtue of a borrower-
lender relationship between a bank and its customer.’’
Southbridge Associates, LLC v. Garofalo, 53 Conn. App.
11, 19, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733
A.2d 229 (1999). ‘‘The fact that a bank is indebted to
its account holders for the amount of the funds that
they have deposited . . . imposes no special duty of
care for the safekeeping of the funds on deposit.’’ (Cita-
tions omitted.) Frigon v. Enfield Savings & Loan Assn.,
195 Conn. 82, 87, 486 A.2d 630 (1985). Accordingly,
the plaintiff must assert and demonstrate additional
circumstances that establish more than a bank-deposi-
tor relationship.
In support of the jury’s finding of a special relation-
ship for purposes of tolling, the plaintiff points to the
following facts: the plaintiff was a customer of the
defendant for more than twenty years; the plaintiff was
one of the Montville branch’s biggest customers; the
Montville branch is a small branch that is located one
and one-half miles from the plaintiff; the plaintiff had
several accounts with the defendant; and the branch
manager, Napolitano, was familiar with the plaintiff and
its employees. We conclude that these facts, without
more, did not give rise to a unique degree of trust and
confidence sufficient to establish a fiduciary or confi-
dential relationship as a matter of law. Moreover, even
if we were persuaded by the plaintiff’s contention that
some special relationship other than a fiduciary rela-
tionship could support tolling, these facts would not
satisfy a reasonable standard for that term. Indeed, we
note that many of the plaintiff’s allegations do not relate
to its relationship with the defendant, but specifically
and exclusively to its relationship with the Montville
branch.
Therefore, we consider the other basis for tolling—
the breach of a duty that remained in existence after
commission of the original wrong related thereto, estab-
lished through later wrongful conduct related to the
prior act. In considering this question, we are mindful
that ‘‘[t]he continuing course of conduct doctrine
reflects the policy that, during an ongoing relationship,
lawsuits are premature because specific tortious acts
or omissions may be difficult to identify and may yet be
remedied.’’ (Internal quotation marks omitted.) Watts v.
Chittenden, 301 Conn. 575, 583–84, 22 A.3d 1214 (2011).
As to what constitutes a continuing violation of a
breach, this court cited with approval the following
explanation: ‘‘In between the case in which a single
event gives rise to continuing injuries and the case in
which a continuous series of events gives rise to a
cumulative injury is the case in which repeated events
give rise to discrete injuries . . . . [In such a case] the
damages from each discrete act . . . would be readily
calculable without waiting for the entire series of acts
to end. There would be no excuse for the delay. And
so the violation would not be deemed continuing.’’
(Citations omitted; internal quotation marks omitted.)
Id., 588–89.
Because our analysis is limited to the jury’s verdict
in favor of the plaintiff on counts two and three, alleging
violations of the UCC, we begin with an examination
of those counts. Count two alleged violations of §§ 42a-
4-205 and 42a-4-401. This count relates to checks drawn
on the plaintiff’s operating fund account that were
improperly paid or deposited into the Camp Sunshine
account because the checks either were not endorsed
or were not properly endorsed by the payee. Count
three alleged violations of §§ 42a-3-206 and 42a-3-420.
This count relates to checks payable to the plaintiff
that the defendant improperly accepted for deposit into
the Camp Sunshine account or improperly paid to a
person not entitled to deposit or to obtain payment
on them.
The fundamental defect with these claims with regard
to tolling principles is that there is no commission of
an original wrong under these provisions of the UCC.
The defendant breached no duty under the UCC provi-
sions at issue by opening the Camp Sunshine account
for Licitra, by failing to inform the plaintiff of this
account or by mailing the statements for this account
to Licitra. Rather, it is the defendant’s conduct in depos-
iting or paying these checks that constituted the breach
of the defendant’s duties under the UCC. Each check
so deposited or paid constituted a discrete violation
of the UCC. There is no difficulty in identifying each
wrongful act or assigning a remedy for that wrong.
Although undoubtedly the defendant’s conduct in open-
ing the account for Licitra facilitated, or even made
possible, Licitra’s theft of the plaintiff’s funds, that con-
duct is not a breach of a duty owed under the relevant
provisions of the UCC. See Martinelli v. Fusi, 290 Conn.
347, 357, 963 A.2d 640 (2009) (‘‘[w]hen presented with
a motion for summary judgment under the continuous
course of conduct doctrine, we must determine whether
there is a genuine issue of material fact with respect to
whether the defendant: [1] committed an initial wrong
upon the plaintiff; [2] owed a continuing duty to the
plaintiff that was related to the alleged original wrong;
and [3] continually breached that duty’’ [emphasis
added; internal quotation marks omitted]). Therefore,
the evidence does not support the jury’s finding of a
continuing course of conduct under counts two and
three.
In the absence of a basis for tolling, the plaintiff’s
claims under the UCC were subject to a three year
statute of limitations. See General Statutes §§ 42a-3-
118 (g) and 42a-4-111. Therefore, an action under these
provisions for any wrongful deposit or payment
occurring more than three years before the plaintiff
commenced the present action would be time barred.
Because the plaintiff filed the present action on May 6,
2008, any checks wrongfully paid or deposited more
than three years prior to this date cannot be a basis
for recovery. It is evident from the accounting summary
that the plaintiff provided to the jury that, prior to May
6, 2005, Licitra deposited into and withdrew from the
Camp Sunshine account an amount many times in
excess of $5156.42, the difference between the breach
of contract award and the award for violations of the
UCC. Therefore, the defendant is entitled to a reduction
in damages of $5156.42.
IV
Last, we turn to the defendant’s argument that the
trial court improperly denied its motion for remittitur.
The defendant contends that the motion should have
been granted for two reasons. First, the plaintiff
obtained insurance proceeds of $100,000 toward the
loss that it sustained.13 Second, the jury determined that
prejudgment interest should begin to run on November
8, 2002, the date on which the defendant opened the
Camp Sunshine account, when the only ‘‘ ‘wrongful
detention’ ’’ of the plaintiff’s money on that date was
the initial deposit of $62.50.14
Our analysis of this claim is guided by settled princi-
ples. ‘‘The court’s broad power to order a remittitur
should be exercised only when it is manifest that the
jury [has] included items of damage which are contrary
to law, not supported by proof, or contrary to the court’s
explicit and unchallenged instructions.’’ (Internal quo-
tation marks omitted.) Saleh v. Ribeiro Trucking, LLC,
303 Conn. 276, 281, 32 A.3d 318 (2011). The relevant
inquiry is whether the verdict falls within the necessar-
ily uncertain limits of fair and reasonable compensation
or whether it so shocks the conscience as to compel
the conclusion that it was due to partiality, prejudice
or mistake. See id.
We can readily dispose of the defendant’s claim inso-
far as it relates to the plaintiff’s insurance proceeds.
Under case law dating back more than one century,
this court has held that ‘‘a defendant is not entitled to
be relieved from paying any part of the compensation
due for injuries proximately resulting from his act
where payment comes from a collateral source, wholly
independent of him.’’ Lashin v. Corcoran, 146 Conn.
512, 515, 152 A.2d 639 (1959); accord Regan v. New
York & New England Railroad Co., 60 Conn. 124, 130,
22 A. 503 (1891) (concluding that party causing loss was
not entitled to reduction due to payment by insurance
company); but see Jones v. Riley, 263 Conn. 93, 103,
818 A.2d 749 (2003) (explaining that General Statutes
§ 52-225a legislatively abrogated common-law collat-
eral source rule with respect to actions to recover for
personal injuries). ‘‘The reason for the [collateral
source] rule . . . is that a windfall ought not to be
granted to a defendant. . . . If there must be a windfall
certainly it is more just that the injured person shall
profit therefrom, rather than the wrongdoer shall be
relieved of his full responsibility for his wrongdoing.’’
(Citation omitted; internal quotation marks omitted.)
Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576,
580, 271 A.2d 94 (1970).
The case law cited by the defendant in support of its
position is wholly inapposite, as the funds that were
the subject of remittitur in those cases were in the form
of settlements from joint tortfeasors, and the trial court
concluded in the exercise of its discretion that remitti-
tur was warranted. See Alfano v. Ins. Center of Torring-
ton, 203 Conn. 607, 610–11, 525 A.2d 1338 (1987); Peck
v. Jacquemin, 196 Conn. 53, 71, 491 A.2d 1043 (1985).
Indeed, we note that the defendant’s characterization
of the insurance proceeds as pure double recovery over-
looks the fact that the plaintiff presumably paid premi-
ums to obtain those proceeds.
With respect to the defendant’s claim regarding pre-
judgment interest, we note that the plaintiff neither
requested, nor was awarded, interest on the entire
amount of damages beginning on November 8, 2002.
Rather, the plaintiff’s motion for prejudgment interest
requested 2 percent interest per year on each check
with interest beginning to accrue from the date of each
check’s deposit. The award of interest conforms to the
exhibit submitted by the plaintiff calculating interest
for each check. The first of those checks simply was
deposited on November 8, 2002, and thus the interest
on that first deposit began to accrue on that date.
Accordingly, the award in this case neither shocks
the conscience of this court nor falls outside the limits
of just damages. Nonetheless, in light of our conclusion
in part III of this opinion that the damage award was
excessive by $5156.42, the defendant also is entitled to
a proportionate reduction in interest.
The judgment is reversed only with respect to the
award of damages and interest and the case is remanded
with direction to reduce the award of damages by
$5156.42 and to proportionately reduce prejudgment
interest. The judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
2
The account was opened at the Montville branch of Connecticut National
Bank, which later became Fleet Bank, which in turn became the defendant
in or around 2005. For convenience, we refer to the Montville branch without
distinguishing which bank had possession of the plaintiff’s funds at various
time periods, and to the defendant as the operative bank.
3
With some minor variations, most of the checks were made payable to
Saint Bernard High School or Saint Bernard Academy.
4
The plaintiff offered expert testimony on commercial law and reasonable
commercial standards of the banking industry.
5
The plaintiff amended an earlier complaint to eliminate any allegations
that the checks deposited into the Camp Sunshine account bore unautho-
rized or forged signatures/endorsements in response to the defendant’s
special defense that claims predicated on fraudulent signatures or endorse-
ment were time barred under the UCC.
6
The jury interrogatories reflected that the jury had found in favor of the
plaintiff on all five counts, and indicated as follows:
Part A—Breach of Contract: yes, the contract existed; yes, the contract
was breached; the total of damages suffered as a result of breach:
$818,620.54;
Part B—Negligence: (1) yes, the defendant was negligent; the damages
suffered: $818,620.54; yes, the defendant proved that the plaintiff was contrib-
utorily negligent; the percentage loss caused by the defendant’s negligence:
95 percent; the percentage loss caused by the plaintiff’s negligence: 5 percent;
the award as reduced by the percentage of the plaintiff’s negligence:
$777,689.51;
Part C—Conversion: yes, the defendant converted the plaintiff’s funds;
the total amount of damages suffered as a result of the defendant’s conver-
sion: $818,620.54;
Part D—Checks from the Plaintiff’s Operating Fund (§ 42a-4-401): yes,
the defendant deposited checks into the Camp Sunshine account that were
from the plaintiff’s operating fund and had either no endorsement or restric-
tive endorsement; the dollar amount of those checks: $516,476.75;
Part E—Checks Payable to the Plaintiff (§ 42a-3-420): yes, the defendant
deposited checks into the Camp Sunshine account that were payable to the
plaintiff in violation of § 42a-3-420; the total amount of those checks:
$298,562.37;
Part F—Checks with Restrictive Endorsements to the Plaintiff (§ 42a-3-
206): yes, the defendant deposited checks into the Camp Sunshine Account
that were payable to the plaintiff and had restrictive endorsements directing
that payment be made to the plaintiff in violation of § 42a-3-206; the total
amount of those checks: $307,300.21;
Part G—Tolling: yes, the defendant engaged in a continuous course of
conduct; yes, the parties had a special relationship from 2002 through 2006;
Part H—Interest: yes, the plaintiff is entitled to prejudgment interest; 2
percent per year is the appropriate rate of interest; the wrongful detention
began on November 8, 2002.
The $823,776.96 award was the total amount of damages under Part D
and Part F. It is unclear why the total award under those provisions exceeds
the damages found under parts A, B (prior to the reduction for contributory
negligence) and C. The defendant did not challenge the difference between
these damage amounts in its motion for remittitur.
7
The plaintiff claimed that there was no evidence that it had found unau-
thorized transactions upon its review of the statements as required to trigger
notice obligations, that, in fact, there was evidence to the contrary, and
that the defendant had not even introduced the operating fund account
statements into evidence. The plaintiff also claimed that: there was no
evidence that the agreements formed part of the contract governing the
plaintiff’s operating fund; even if the account agreements were part of the
contract, they are not enforceable because the jury found that the defendant
had materially breached its contract; they do not apply to the claims asserted
in counts one and five as they are predicated on allegations of bad faith
and intentional acts; and they do not bar judgments predicated on negligence
or violations of the UCC because the allegations extend beyond liability for
the processing of unauthorized withdrawals. Our concern focuses on the
evidentiary question relating to the plaintiff’s knowledge of unauthorized
transactions.
8
The plaintiff had filed a motion in limine to exclude the deposit account
agreements on the grounds that they: (1) do not apply to the plaintiff’s
operating account; and (2) are unenforceable because they violate § 42a-4-
103 of the UCC and public policy under the factors identified in Hanks v.
Powder Ridge Restaurant Corp., supra, 276 Conn. 314. The trial court held
a hearing on the motion before the first day of trial, but did not issue a
decision. After the close of the plaintiff’s case-in-chief and its denial of the
defendant’s motion for a directed verdict, the court continued the hearing
on the motion in limine. At the end of the hearing, the court concluded that
there was sufficient evidence for the jury to consider whether the agreements
were part of the plaintiff’s contract with the defendant, but did not address
the enforceability of the agreements. After the close of evidence, the trial
court permitted the defendant to file an amended answer and defenses in
response to the plaintiff’s recently amended complaint. In connection with
the amended answer and defenses, the trial court ruled on the issue pre-
viously raised by the plaintiff’s motion in limine, ruling that ‘‘the exculpatory
language in the [deposit] account agreements is unenforceable pursuant to
[§] 42a-4-103, and as a matter of public policy pursuant to Hanks . . . .’’
Before the parties made closing arguments to the jury, the court stated to
the jury: ‘‘[T]he court has made a ruling in your absence concerning some
exhibits and I’m advising you that the court has excluded defendant’s exhib-
its A, B, C and D as evidence of any contract between the plaintiff and the
defendant and the jury should not consider these exhibits or reference to
these exhibits in oral testimony by witnesses and/or reference to them in
other exhibits. I believe we will also bring that up, again, in our charge. But
I wanted to advise you of that, because that ruling was made outside of
your presence.’’ Shortly thereafter, in its closing argument, the plaintiff
reiterated: ‘‘His Honor told you a little while ago that those deposit—those
so-called deposit account agreements, exhibits A through D that were put
in evidence when you were last here on Friday, as His Honor told you, those
have been stricken. You are not to consider those as part of this case. So
the question with the checks is: Did the bank put them in the account against
the rules and against the law?’’ In its charge, the court further stated: ‘‘It is
up to you to decide whether or not the documents relied on by the plaintiff
constitute a contract and whether or not the defendant breached that con-
tract. In making your determination, on this or any other issue in the case,
you may not consider the defendant’s exhibits A, B, C and D as part of
the contract, or any testimony you heard about the terms contained in
these exhibits.’’
9
Outside the presence of the jury, the defendant conceded that the deposit
account agreements would apply to the plaintiff’s operating fund account
only, not the Camp Sunshine account.
10
The special defense alleged as follows: ‘‘On information and belief, the
plaintiff was guilty of negligence which was a contributing cause of any
loss allegedly sustained by the plaintiff, in that the plaintiff:
‘‘(a) allowed . . . Licitra to obtain possession of and endorse the checks
that are the subject of the plaintiff’s complaint;
‘‘(b) did not take proper and necessary precautions to prevent . . . Lic-
itra, an allegedly unauthorized signatory, from having access to, taking
possession of and endorsing the checks that are the subject of the plain-
tiff’s complaint;
‘‘(c) did not take proper and necessary precautions to prevent . . . Lic-
itra, an allegedly unauthorized signatory, from using the plaintiff’s accounts
payable system to generate allegedly fraudulent checks which were then
signed by authorized signatories and deposited into the Camp Sunshine
account;
‘‘(d) failed to use reasonable care to detect the alleged removal and/or
endorsement of the checks;
‘‘(e) failed to adopt and implement a policy or procedure to detect the
removal and/or endorsement of the checks;
‘‘(f) did not take proper and necessary precautions to prevent . . . Licitra
from having access to and taking possession of signature stamp(s);
‘‘(g) failed to conduct a criminal background check on . . . Licitra prior
to his employment; and
‘‘(h) failed to review bank statements that were sent to the plaintiff by
the defendant, which bank statements would have alerted the plaintiff to
the alleged unauthorized transactions and alleged unauthorized account.’’
11
The defendant does not contend that this tolling doctrine is per se
inapplicable to claims under the UCC, but that it is merely inapplicable
under the facts of the case. Although our Appellate Court has questioned
the extent to which this doctrine applies outside of claims sounding in tort,
we have no occasion to consider that question in the present case. See
Fradianni v. Protective Life Ins. Co., 145 Conn. App. 90, 100 n.9, 73 A.3d 896
(‘‘We note that the continuing course of conduct doctrine is one classically
applicable to causes of action in tort, rather than in contract. The doctrine
concerns itself with ‘wrongs,’ the nomenclature of tort, not with ‘breach,’
the language of contract. . . . Because, however, we have determined that
the plaintiff’s allegations do not constitute a ‘course of conduct’ in the first
instance, we need not address whether the continuing course of conduct
doctrine may apply outside of actions in tort.’’ [Citation omitted.]), cert.
denied, 310 Conn. 934, 79 A.3d 888 (2013).
12
The defendant also challenges the jury instruction on tolling. The plain-
tiff contends that the instruction was proper, relying in part on the fact
that it largely mirrored the Judicial Branch’s model jury instruction. See
Connecticut Civil Jury Instructions (2008) instruction 3.3-3, available at
http://jud.ct.gov/JI/Civil/part3/3.3-3.htm (last visited July 24, 2014). In light
of our conclusion that the evidence does not support the jury’s findings
under a proper application of the law to the evidence relating to the claims
under the UCC, we need not examine the propriety of the jury instruction.
13
The plaintiff does not dispute that it received insurance proceeds. Nei-
ther party has indicated the nature and basis for the insurance recovery.
14
The defendant also contends that the plaintiff took the position that
interest did not begin to accrue until September 6, 2006, which appears to
be the date of the final transaction on the Camp Sunshine account. The
defendant made no such argument in its motion for remittitur and we
therefore need not consider this contention.