Essex Ins. Co. v. William Kramer & Associates, LLC , 331 Conn. 493 ( 2019 )

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ESSEX INSURANCE COMPANY v. WILLIAM
KRAMER & ASSOCIATES, LLC
(SC 20130)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff insurance company appealed to the United States Court of
Appeals for the Second Circuit from the judgment, rendered by the
United States District Court for the District of Connecticut, for the
defendant claims adjuster after the District Court set aside the jury’s
verdict in favor of the plaintiff on the ground that there was insufficient
evidence to support the jury’s finding that a continuing course of conduct
tolled the statutory (§ 52-577) three year limitation period applicable to
the plaintiff’s action. In 2005, a hurricane damaged certain commercial
property owned by the plaintiff’s insured. The plaintiff hired the defen-
dant as its independent adjuster. As the plaintiff’s adjuster, the defendant
was responsible for, inter alia, inspecting the property, estimating and
working with the insured to determine the value of the loss, and identi-
fying any mortgages on the insured property. In 2006, the insured’s
retail broker sent a letter to O, the individual adjuster assigned by the
defendant to the insured’s claims. That letter included, on the reverse
side, a schedule listing the mortgages on all of the insured’s properties,
including a mortgage on the property at issue and the name of the
mortgagee. Prior to issuing the final insurance claim payment in March,
2007, to the insured for the property damage, the plaintiff received
assurances from O and M, also an employee of the defendant, that there
were no mortgages on the property. In 2009, the bank that held the
mortgage on the property brought an action against third parties, includ-
ing the defendant, alleging that they failed to protect its interest in the
property. M notified the plaintiff of the bank’s action, and the plaintiff
offered to assist the defendant with its responsibility to produce docu-
ments and other evidence, including covering the defendant’s legal
expenses related to that action. In 2010, the bank amended its complaint
to add the plaintiff as an adverse party, alleging that the plaintiff knew
that the bank held a mortgage on the property and should have issued the
insurance proceeds directly to the bank. M was subsequently deposed
in the bank’s action, and, in preparing for the deposition in 2012, M
discovered in the defendant’s files the letter containing the schedule
showing that the bank held a mortgage on the property. The plaintiff,
concerned that the defendant’s knowledge of the schedule could be
imputed to it, settled the bank’s claims against it for $1 million. There-
after, in October, 2013, the plaintiff brought the present action to recover
damages from the defendant for its negligence in failing to advise it of
the mortgage on the property before it issued the final claim payment
to the insured. The plaintiff claimed that the defendant’s continuing
course of conduct tolled the three year limitation period for commencing
the action until the defendant discovered and produced the schedule
showing the mortgage during the course of the litigation between the
bank and the plaintiff. The District Court instructed the jury regarding
the defendant’s alleged breach of its continuing duty under two theories,
first, that, pursuant to a special relationship between the plaintiff and
the defendant, the defendant had a continuing duty to disclose the
existence of the mortgage, and, second, under a theory of the defendant’s
later wrongful conduct in continuing to fail to disclose the existence of
the mortgage. Following the plaintiff’s appeal to the Second Circuit,
that court concluded that Connecticut law regarding the parameters of
the tolling doctrine were unclear and sought this court’s advice, by way
of certification pursuant to statute (§ 51-199 [b]), whether the evidence
was legally sufficient to support a finding by the jury that the applicable
limitation period was tolled by a continuing course of conduct through
the three year period before the plaintiff commenced the present
action. Held:
1. The evidence was not legally sufficient to establish that the defendant
had a continuing duty to the plaintiff on the basis of a special relationship
between the parties that continued until at least three years before the
plaintiff commenced the present action in October, 2013, thereby tolling
the statute of limitations, as none of the defendant’s actions after the
plaintiff issued the final claim payment in 2007 reasonably could be
considered further performance of any of the adjustment services the
parties had agreed on and, thus, a further continuation of the fiduciary
relationship that existed prior to that time: the defendant closed its file
on the property shortly after the plaintiff issued the final claim payment,
signifying that it had completed its performance of the adjustment ser-
vices for which it had been hired, any actions by the defendant thereafter,
including communications, were not adjustment services, and the defen-
dant’s acts in billing to the plaintiff M’s time spent in connection with
the bank’s action and using the plaintiff’s attorney reflected a business
relationship but did not bear the hallmarks of agency generally or a
fiduciary relationship specifically; moreover, the plaintiff could not pre-
vail on its claim that the defendant had a continuing duty to warn of
or correct a mistake after the termination of the special relationship,
as there was no basis on which the jury reasonably could have concluded
that the defendant had actual knowledge of the bank’s mortgage on the
property before 2012, when M discovered the schedule showing that
the bank held a mortgage on the property, as both O and M testified
that they had no recollection of ever having seen the schedule during
the relevant time frame, and the plaintiff’s theory of the case was prem-
ised on the defendant’s constructive knowledge, not its actual knowl-
edge, of the bank’s mortgage.
2. The evidence adduced at trial was not legally sufficient to support a
finding by the jury that the statute of limitations was tolled through at
least October, 2010, under the continuing course of conduct doctrine
on the basis of later wrongful conduct relating to the defendant’s prior
omission: this court rejected the plaintiff’s claim that the defendant’s
ongoing failure to disclose the existence of the bank’s mortgage on the
property constituted later wrongful conduct that continued until M’s
2012 disclosure of the schedule, as the defendant did not have actual
knowledge of that schedule until 2012, and the plaintiff did not identify
any other action by the defendant that constituted later wrongful con-
duct; moreover, this court declined to recognize a continuing duty of
the defendant to investigate as long as any business relationship existed
between the parties, as an agent’s duty to use reasonable efforts to give
the principal information that is relevant to the affairs entrusted to the
agent generally ends with the termination of the agency relationship.
Argued October 16, 2018—officially released April 23, 2019
Procedural History
Action to recover damages for the alleged negligence
of the defendant, and for other relief, brought to the
United States District Court for the District of Connecti-
cut, and tried to the jury before Shea, J.; verdict and
judgment for the plaintiff; thereafter, the court granted
the defendant’s motion for judgment as a matter of
law and rendered an amended judgment thereon, from
which the plaintiff appealed to the United States Court
of Appeals for the Second Circuit, Leval, Raggi and
Lohier, Js., which certified to this court a question of
law regarding whether the evidence was sufficient to
support the jury’s finding that a continuing course of
conduct tolled the statute of limitations.
Mary Massaron, pro hac vice, with whom was Chris-
topher L. Jefford, for the appellant (plaintiff).
Richard A. Simpson, pro hac vice, with whom, was
Christopher P. Kriesen, for the appellee (defendant).
Opinion
McDONALD, J. This case, which comes to us on certi-
fication from the United States Court of Appeals for
the Second Circuit; see General Statutes § 51-199b (d);
requires us to consider the applicability of our continu-
ing course of conduct tolling doctrine to a relationship
between an insurance company and its independent
claims adjuster in the period after an insured’s claim has
been fully paid. The plaintiff insurer, Essex Insurance
Company, brought a negligence action against the
defendant claims adjuster, William Kramer & Associ-
ates, LLC, in the United States District Court for the
District of Connecticut, alleging that the defendant had
breached its duty to advise the plaintiff of a mortgage
on the insured property before the plaintiff issued the
final claim payment check to the insured for hurricane
related damage, thereby causing the plaintiff to incur
liability to the mortgagee. The plaintiff contended that
the limitation period for commencing an action was
tolled until the defendant discovered and produced a
document in one of its files that reflected the mortgag-
ee’s interest during the course of litigation between the
mortgagee and the plaintiff. The District Court set aside
the jury’s verdict in favor of the plaintiff on the ground
that there was insufficient evidence to support the jury’s
finding that a continuing course of conduct tolled the
otherwise untimely filed action. See Essex Ins. Co. v.
William Kramer & Associates, LLC, United States Dis-
trict Court, Docket No. 3:13-cv-1537 (MPS) (D. Conn.
June 8, 2016). The Second Circuit concluded that Con-
necticut law regarding the contours of this tolling doc-
trine is unclear and sought our advice as to whether
the evidence is legally sufficient to support the jury’s
finding. See Evanston Ins. Co. v. William Kramer &
Associates, LLC, 890 F.3d 40 (2018).1 We conclude that
the evidence is not legally sufficient to toll the statute
of limitations on this factual record.
The District Court’s decision set forth the following
facts that the jury reasonably could have found, which,
for context, we supplement with uncontested facts
reflected in the record certified to this court. In 2005,
a hurricane damaged properties in Florida, including
four commercial properties owned by IDM Manage-
ment, Inc. The property directly relevant to the present
action is an apartment complex, The Villas at Lauderhill,
LLC, known as the ‘‘Villas.’’ IDM had several layers of
insurance to protect itself against such a loss for its
properties: an initial layer of coverage from Aspen Spe-
cialty Insurance Company; an excess layer from the
plaintiff; and an additional excess layer from a third
insurer.2 The plaintiff received notice from IDM that
the loss might reach the plaintiff’s layer of coverage.
After Aspen hired the defendant to adjust the loss to
the IDM properties for its initial layer of coverage, the
plaintiff agreed to hire the defendant as its independent
adjuster for the IDM properties. It is customary industry
practice for excess layer insurers to engage the same
independent adjuster as the initial layer insurer to allow
all insurers to share the information and work product
generated in the original adjustment.
The plaintiff hired the defendant to perform a ‘‘ ‘full
adjustment’ ’’ on the properties. Although the parties
did not execute a written contract, it was understood
that a full adjustment included inspecting the property,
estimating the value of the loss, working with IDM to
agree to an amount of loss, reviewing all coverage
aspects of the plaintiff’s policy, identifying any potential
coverage issues, and reporting all elements associated
with the investigation and the claim measuring process.
Significantly, for purposes of the present case, it also
included identifying any mortgages on the insured prop-
erty. The need to identify such mortgages stemmed
from the fact that the mortgagee could have an interest
in the insurance proceeds.
Two of the defendant’s employees were involved with
the adjustment of IDM’s claims: Dennis D. Martin, the
defendant’s general executive adjuster who had solic-
ited the plaintiff’s business, and Robert Oberpriller, the
defendant’s general adjuster. Oberpriller did the work
in the field, traveling between his home in Minnesota
and the damaged properties in Florida. Because those
properties were approximately 250 miles from the
defendant’s closest Florida offices, Palm Harbor and
Tampa, and Oberpriller did not work out of those
offices, he kept a ‘‘working file’’ with him.
In April, 2006, IDM’s retail broker sent a letter to the
defendant’s Palm Harbor office addressed to Ober-
priller, requesting reissuance of a check from Aspen
for one of IDM’s properties because the banks listed
as payees were incorrect. The letter provided the names
of the correct payees and noted, ‘‘I have also enclosed
a copy of the mortgagees showing Wachovia Securities
for Park Apartments for your files.’’
The enclosed document, captioned ‘‘schedule of
mortgagees,’’ did not list mortgagees for just Park Apart-
ments, but for all four IDM properties. Intervest
National Bank was listed last as mortgagee for the Villas.
The letter from IDM’s retail broker and its accompa-
nying schedule of mortgagees were placed in a file in
either the Palm Harbor or Tampa office (Aspen file).3
Even though the defendant had the mortgagee sched-
ule in its Aspen file and was obligated to share informa-
tion obtained while working for Aspen, Oberpriller and
Martin sent periodic status reports to the plaintiff indi-
cating that there were mortgages on the other three
IDM properties but that there was no mortgage on the
Villas.4 Just before the plaintiff issued its final claim
payment check to IDM, the plaintiff’s executive claims
examiner contacted Oberpriller and Martin specifically
to inquire whether there was a mortgage on the Villas.
They replied that they had not received a response from
the policyholder in their most recent inquiry, but there
was ‘‘no indication’’ that there was a mortgage on the
Villas. Because the plaintiff’s executive claims examiner
was not licensed in Florida as an insurance adjuster,
he could not contact IDM directly on this matter. As a
result, when the plaintiff issued the final claim payment
check to IDM on March 19, 2007, exhausting IDM’s
policy limit, it did not list Intervest as a payee or inform
Intervest that it was going to make its final claim
payment.
The defendant closed its file on the Villas claim on
May 8, 2007. At some point around that date, Oberpriller
delivered his working file on the IDM properties, con-
sisting of two boxes of documents, to the defendant’s
Palm Harbor office.
After the plaintiff issued the final claim check, there
were three instances of contact between the defendant
and the plaintiff relating to the Villas. First, in August
or September, 2007, Martin contacted the plaintiff to
inform it that the insurance company holding the final
excess layer of coverage on the Villas had inquired as
to whom the plaintiff had issued its payment checks.
In response, the plaintiff’s executive claims examiner
contacted that insurer.
Second, in 2009, after Intervest, the mortgagee on
the Villas, brought an action against third parties con-
cerning their failure to protect its mortgage interest
(Intervest action),5 Martin informed the plaintiff that
Intervest had served the defendant with a subpoena,
demanding production of the defendant’s files relating
to the Villas. Martin did so because he believed that
the defendant had an obligation to inform the plaintiff
if an issue came up that could affect the plaintiff. The
plaintiff offered to assist with the defendant’s produc-
tion responsibility and had its attorney who had assisted
in the loss adjustment process open her files to do
so. The plaintiff also offered to cover the defendant’s
expenses related to the Intervest action.
In response to the 2009 subpoena, the defendant pro-
duced the two boxes of documents that Oberpriller had
returned to the office after he completed the adjust-
ment. It did not produce the Aspen file containing the
mortgagee schedule at that time.
In December, 2010, Intervest filed an amended com-
plaint in the Intervest action, adding the plaintiff as a
defendant; civil process was served on the plaintiff in
January, 2011. The amended complaint alleged, among
other things, that the plaintiff knew that Intervest was a
mortgagee on the Villas and should have paid insurance
proceeds to Intervest.
The third contact between the parties occurred in
2012, when Martin informed the plaintiff that he was
being deposed in the Intervest action. Thereafter, while
Martin was preparing for his deposition, his secretary
came upon the Aspen file when the offices were
searched again, ‘‘just to be diligent.’’6 Martin, in turn,
disclosed to the plaintiff the existence of the mortgagee
schedule in that file. The plaintiff’s attorney prepared
Martin for, and attended, the deposition. Martin pro-
duced the schedule to Intervest at his deposition. There-
after, the defendant billed the plaintiff for the time that
Martin spent at his deposition because, according to
Martin, the defendant still considered the plaintiff its
‘‘client’’ and continued to have an ‘‘ongoing relation-
ship’’ with the plaintiff.
On the basis of the discovery of the mortgage sched-
ule in the Aspen file and the concern that the defen-
dant’s knowledge of this information could be imputed
to it, the plaintiff reevaluated its litigation strategy. Ulti-
mately, the plaintiff settled Intervest’s claims against it
for $1 million. By that time, the plaintiff had incurred
approximately $250,000 in legal fees, between its own
costs and those incurred aiding the defendant.
The record reveals the following additional proce-
dural history. On October 21, 2013, the plaintiff insti-
tuted the present negligence action against the
defendant. The defendant contended that the action
was time barred because it had been filed beyond the
applicable three year limitation period;7 see General
Statutes § 52-577; as measured from the date the plain-
tiff issued the final check to IDM in March, 2007. The
case was submitted to the jury with special instructions
on that issue and on the continuing course of conduct
tolling doctrine invoked by the plaintiff in response.
The jury returned a verdict in favor of the plaintiff,
awarding damages for the settlement and legal fees
incurred. In its interrogatories, the jury found that the
action had been filed more than three years after the
act(s) on which it was based, but that the defendant
had ‘‘engaged in a continuing course of conduct such
that [the defendant’s] duty to [the plaintiff] continued
in a manner that tolled the statute of limitations for
enough time that [the plaintiff’s] claim is not time
barred . . . .’’
The defendant renewed a prior motion for judgment
as a matter of law, previously reserved by the court,
arguing that no reasonable jury could find that the con-
tinuing course of conduct doctrine applied under the
facts of the case. The District Court agreed, set aside the
jury’s verdict, and rendered judgment for the defendant.
The plaintiff appealed to the Second Circuit. That
court agreed with an observation made by the District
Court that Connecticut law did not provide clear guid-
ance in this context, but it questioned the District
Court’s application of the case law to the facts. With
the parties’ agreement, the Second Circuit sought our
guidance by way of certification on the following ques-
tion: ‘‘Is the trial evidence legally sufficient to support
the jury’s finding that the statute of limitations was
tolled at least through October 21, 2010, [three years
before the action was commenced and thus] rendering
the [plaintiff’s] claim timely?’’ Evanston Ins. Co. v. Wil-
liam Kramer & Associates, LLC, supra, 890 F.3d 51.
We agree with the District Court’s determination that
the evidence was not legally sufficient.
Section 52-577 provides: ‘‘No action founded upon a
tort shall be brought but within three years from the
date of the act or omission complained of.’’ (Emphasis
added.) This court has explained that ‘‘the history of
that legislative choice of language precludes any con-
struction thereof delaying the start of the limitation
period until the cause of action has accrued or the
injury has occurred. . . . The date of the act or omis-
sion complained of is the date when the . . . conduct
of the defendant occurs . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Certain Underwriters at
Lloyd’s, London v. Cooperman, 289 Conn. 383, 408, 957
A.2d 836 (2008); see also Rosato v. Mascardo, 82 Conn.
App. 396, 407, 844 A.2d 893 (2004) (characterizing § 52-
577 as statute of repose). As such, ‘‘an action com-
menced more than three years from the date of the
negligent act or omission complained of is [time] barred
. . . regardless of whether the plaintiff had not, or in
the exercise of [reasonable] care could not reasonably
have discovered the nature of the injuries within that
time period.’’ (Internal quotation marks omitted.) Mar-
tinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
However, the continuing course of conduct doctrine
recognizes that the ‘‘act’’ or ‘‘omission’’ that commences
the limitation period may not be discrete and attribut-
able to a fixed point in time. ‘‘[T]he doctrine is generally
applicable under circumstances where [i]t may be
impossible to pinpoint the exact date of a particular
negligent act or omission that caused injury or where
the negligence consists of a series of acts or omissions
and it is appropriate to allow the course of [action] to
terminate before allowing the repose section of the
[limitation period] to run . . . .’’ (Internal quotation
marks omitted.) Rosenfield v. Rogin, Nassau, Caplan,
Lassman & Hirtle, LLC, 69 Conn. App. 151, 160–61,
795 A.2d 572 (2002).
‘‘[T]o support a finding of a continuing course of
conduct . . . 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 rela-
tionship between the parties giving rise to such a contin-
uing duty or some later wrongful conduct of a defendant
related to the prior act.’’ (Emphasis added; internal
quotation marks omitted.) Saint Bernard School of
Montville, Inc. v. Bank of America, 312 Conn. 811, 835,
95 A.3d 1063 (2014); accord Connell v. Colwell, 214
Conn. 242, 255, 571 A.2d 116 (1990); see also Martinelli
v. Fusi, supra, 290 Conn. 357 (plaintiff must establish
that ‘‘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’’ [internal quotation
marks omitted]).
In the present case, the plaintiff claims that the defen-
dant engaged in a continuing course of conduct that
tolled the limitation period until the defendant pro-
duced the mortgagee schedule from the Aspen file in
September, 2012. It contends that the defendant
breached a continuing duty to disclose the existence of
the mortgage arising from either the special relationship
between the parties or the defendant’s later wrongful
conduct in continuing to fail to make this disclosure.
The District Court instructed the jury regarding continu-
ing duty under both a theory of a special relationship
and a theory of later wrongful conduct. The interrogato-
ries did not ask the jury to specify which theory the
evidence supported. Therefore, we must consider
whether the evidence was legally sufficient under either
theory to establish that the defendant’s duty to disclose
the mortgage remained in existence through at least
October 21, 2010. See MacDermid, Inc. v. Leonetti, 328
Conn. 726, 752, 183 A.3d 611 (2018) (applying general
verdict rule).
I
We begin with the special relationship theory. The
plaintiff advances two grounds for prevailing on this
theory. We consider each in turn.
A
The jury was instructed that, as an adjuster hired by
the plaintiff, the defendant was the plaintiff’s agent and
therefore had a special relationship of trust with the
plaintiff. The question presented to the jury, therefore,
was whether this special relationship continued until
at least three years before the action was commenced
in October, 2013. Although the defendant challenged at
trial the instruction that a special relationship of trust
had been created, it abandoned that claim on appeal.
Therefore, our analysis is limited to the question pre-
sented to the jury.
As the federal courts noted in this case, there is a
dearth of Connecticut appellate jurisprudence applying
this theory. Most of the case law addressing special
relationships as a basis for tolling involves medical mal-
practice and, to a lesser extent, legal malpractice. Spe-
cific tolling doctrines are available for those
relationships—the continuous treatment doctrine and
the continuous representation doctrine. The Second
Circuit questioned the extent to which it is appropriate
to rely on continuous treatment cases for guidance
when analyzing a case under the continuing course of
conduct doctrine because of certain differences
between the doctrines.
The doctrines differ in certain important respects
but ‘‘share similar supporting rationales.’’ Martinelli v.
Fusi, supra, 290 Conn. 356; see Sean O’Kane A.I.A.
Architect, P.C. v. Puljic, 148 Conn. App. 728, 734, 87
A.3d 1124 (2014) (doctrines ‘‘present similar solutions
to similar problems’’). The primary difference is that the
continuous treatment doctrine focuses on the plaintiff’s
reasonable expectation that the treatment for an
existing condition will be ongoing, whereas the continu-
ing course of conduct doctrine is available regardless
of the plaintiff’s knowledge of any reason to seek further
treatment, as long as the defendant had reason to know
that the plaintiff required ongoing treatment or monitor-
ing for a particular condition. Martinelli v. Fusi, supra,356–57. Thus, insofar as continuous treatment cases
weigh various factors to assess the plaintiff’s subjective
expectations, we have declined to extend that approach
to other tolling doctrines. See DeLeo v. Nusbaum, 263
Conn. 588, 598–99, 821 A.2d 744 (2003) (determining
that it is not appropriate to weigh such factors to deter-
mine whether legal representation is ongoing, and
expressing concern that weighing promotes uncertainty
of application). Accordingly, continuous treatment
cases may provide some useful guidance as to the poli-
cies and outcomes intended but should not be relied on
as authority for the circumstances under which special
relationships terminate under the continuing course of
conduct doctrine.
The present case provides an opportunity to examine
the parameters of special relationships governed exclu-
sively by the more general continuing course of conduct
doctrine. As this court previously has explained, ‘‘[u]su-
ally, such a special relationship is one that is built upon
a fiduciary or otherwise confidential foundation. A fidu-
ciary 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. . . . Fiduciar-
ies appear in a variety of forms, including agents, part-
ners, lawyers, directors, trustees, executors, receivers,
bailees and guardians.’’ (Citations omitted; internal quo-
tation marks omitted.) Saint Bernard School of Mont-
ville, Inc. v. Bank of America, supra, 312 Conn. 835–36.
The question in the present case, however, is not
whether an agency relationship existed, but whether an
existing agency relationship and any attendant fiduciary
duties8 continued after the final claim check was issued.
As we have noted in the context of continuous legal
representation, there may be a formal or a de facto
termination of the relationship as it pertains to the
matter at issue. See DeLeo v. Nusbaum, supra, 263
Conn. 597. A formal termination may arise pursuant to
contractual terms or communication to that effect, or
may result when the matter for which the defendant
was hired comes to a conclusion. See id. A de facto
termination arises by conduct inconsistent with the spe-
cial relationship created. See id.In addition to the possibility that a special relation-
ship may terminate altogether, the relationship may
change from its original form. ‘‘That a relationship of
agency exists does not foreclose the possibility that it
may be preceded or followed by another type of legal
relationship between the same parties, nor does it fore-
close the possibility that another type of legal relation-
ship may exist contemporaneously between the same
parties or that the character of a relationship may evolve
over time.’’ 2 Restatement (Third), Agency § 8.01, com-
ment (c), p. 256 (2006); see also DeLeo v. Nusbaum,
supra, 263 Conn. 594 (tolling under continuous repre-
sentation doctrine requires not only that attorney con-
tinue to represent client but also that representation
be related to same transaction or subject matter as
allegedly negligent acts). Therefore, in the present case,
it may be necessary to consider not only whether the
parties’ special relationship terminated but also the
nature of any relationship that existed after the final
check was issued by the plaintiff to the insured in
March, 2007.
In considering the nature of the relationship, we draw
on fundamental principles of agency and fiduciary law.
Essential elements of agency are that the principal has
the ‘‘right to control the agent’s actions’’; 1 Restatement
(Third), supra, § 1.01, comment (f) (1), p. 26; and that
‘‘the agent is doing something at the behest and for
the benefit of the principal.’’ (Internal quotation marks
omitted.) Beckenstein v. Potter & Carrier, Inc., 191
Conn. 120, 133, 464 A.2d 6 (1983). ‘‘[T]he general fidu-
ciary principle requires that the agent subordinate the
agent’s interests to those of the principal and place the
principal’s interests first as to matters connected with
the agency relationship.’’ 2 Restatement (Third), supra,
§ 8.01, comment (b), p. 250. By contrast, the mere 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. . . . [N]ot all business
relationships implicate the duty of a fiduciary. . . . [A]
mere contractual relationship does not create a fidu-
ciary or confidential relationship.’’9 (Citations omitted;
internal quotation marks omitted.) Saint Bernard
School of Montville, Inc. v. Bank of America, supra,
312 Conn. 836. ‘‘Ostensibly, any time one party hires
another to perform a service on their behalf, ‘trust and
confidence’ [are] placed in the latter party. . . . The
unique element that inheres a fiduciary duty to one
party is an elevated risk that the other party could be
taken advantage of—and usually unilaterally. That is,
the imposition of a fiduciary duty counterbalances
opportunities for self-dealing that may arise from one
party’s easy access to, or heightened influence regard-
ing, another party’s moneys, property, or other valuable
resources.’’ (Emphasis omitted.) Iacurci v. Sax, 313
Conn. 786, 801–802, 99 A.3d 1145 (2014).
With this background in mind, we turn to the present
case. The plaintiff points to the following conduct as
proof that the special relationship giving rise to a duty
to disclose Intervest’s mortgagee interest continued
after the plaintiff issued the final claim check in March,
2007: (1) the defendant’s August or September, 2007
communication to the plaintiff relaying the inquiry from
the other excess insurer as to how the plaintiff had
made its payment checks payable; (2) the defendant’s
actions in response to the 2009 subpoena and 2012
deposition, including billing the plaintiff for Martin’s
time and using the plaintiff’s attorney; and (3) Martin’s
testimony that the defendant still viewed the plaintiff
as a client and the parties as having an ongoing relation-
ship. While we agree that these facts evidence some sort
of relationship, we disagree that it was a continuation
of the special relationship formed by the agreement to
provide full adjustment services.
Prior to March, 2007, while the defendant was provid-
ing full adjustment services to the plaintiff, the defen-
dant was under a duty to act for the benefit of the
plaintiff. The defendant’s dominance or influence, and,
hence, its fiduciary duties, arose because it, unlike the
plaintiff, was licensed to perform those services in
Florida.
None of the defendant’s actions after March, 2007,
reasonably could be considered further performance of
any of the full adjustment services previously delineated
and, thus, a further continuation of that fiduciary rela-
tionship. The defendant closed its file on the Villas
shortly after the plaintiff issued the final claim check,
signifying that it had completed its performance of the
adjustment services for which it had been hired. See
DeLeo v. Nusbaum, supra, 263 Conn. 597 (formal termi-
nation occurs when matter for which defendant was
hired comes to conclusion); Bassett v. Mechanics Bank,
118 Conn. 490, 493, 173 A. 228 (1934) (fiduciary relation-
ship ordinarily ‘‘continues until completion of the trans-
action upon which the agent was employed’’); see also
2 Restatement (Third), supra, § 8.01, comment (c), p.
255 (‘‘[a]n agent’s fiduciary duty to a principal is gener-
ally coterminous with the duration of the agency rela-
tionship’’). The defendant made no commitment to
perform additional adjustment services after the plain-
tiff issued the final claim check. Cf. Rosenfield v. Rogin,
Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.
App. 151, 161–62, 795 A.2d 572 (2002) (further dealings
that were contemplated between parties, evidenced by
‘‘promises after the initial wrong or promises to do
anything additional in the future,’’ may give rise to con-
tinuing fiduciary relationship); Sanborn v. Greenwald,
supra, 39 Conn. App. 297 (noting that no extended rela-
tionship existed when attorney made no promise after
drafting stipulation that he would perform further ser-
vices in future). Except for relaying an inquiry from
another insurer, there was no communication between
the parties for approximately two years after the file
was closed. The defendant thereafter initiated commu-
nication only because it had received the subpoena,
and there was no further communication for three years
thereafter, again initiated by the defendant only because
it was to be deposed.
In addition to the fact that the defendant’s post-2007
actions were not adjustment services, none of those
actions bears the hallmarks of agency generally or of
a fiduciary specifically. The plaintiff had no right to
control the defendant’s response to Intervest’s discov-
ery requests, directed exclusively to the defendant. See
City Council v. Hall, 180 Conn. 243, 249, 429 A.2d 481(1980) (it is served party’s obligation to comply with
lawfully issued subpoena). In fact, there was no evi-
dence that the plaintiff directed the defendant to under-
take any action in response to those requests or that
it had any expectation that the defendant would do
anything other than comply with its legal obligation.
The defendant had no obligation, or right, to withhold
evidence that could expose the plaintiff to liability, or
to assert objections to disclosure on the basis of any
right or privilege held by the plaintiff. Instead, the defen-
dant was merely reporting on past events. Cf. Manzo-
Ill v. Schoonmaker, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S
(March 7, 2017) (Povodator, J.) (‘‘assistance with prepa-
ration/presentation of the factual record of prior events,
after an otherwise clear cessation of representation,
does not constitute continued representation’’).
Undoubtedly, the defendant’s acts in billing Martin’s
time to the plaintiff and using the plaintiff’s attorney
reflect some sort of business relationship between the
parties. As we previously observed, however, ‘‘[n]ot all
business relationships implicate the duty of a fiduciary.’’
10
(Internal quotation marks omitted.) Saint Bernard
School of Montville, Inc. v. Bank of America, supra,
312 Conn. 836. The unique element that gives rise to a
fiduciary duty—the risk that the other party could be
taken advantage of as a result of one party’s access to,
or influence regarding, another party’s moneys, prop-
erty, or other valuable resources; Iacurci v. Sax, supra,
313 Conn. 801–802; was not present during the parties’
limited interactions after March, 2007. Thus, irrespec-
tive of whether these facts are sufficient to justify the
defendant’s belief that the plaintiff continued to be its
client, they are plainly insufficient to establish that any
fiduciary relationship created by the agreement to per-
form full adjustment services continued after the plain-
tiff issued the final check and the defendant closed its
file. Cf. Flannery v. Singer Asset Financial Co., LLC,
312 Conn. 286, 316 n.27, 94 A.3d 553 (2014) (rejecting
argument that testimony of managing partner of attor-
ney’s law firm, agreeing that attorney’s duty to disclose
his prior conflict of interest continued indefinitely, was
sufficient to establish legal conclusion of fiduciary
duty).
Insofar as the plaintiff contends that Vanliner Ins.
Co. v. Fay, 98 Conn. App. 125, 907 A.2d 1220 (2006),
supports a contrary conclusion, the relationship in that
case is materially distinguishable. In Vanliner Ins. Co.,
the defendant insurance adjuster breached a continuing
duty to the plaintiff insurance company by failing to
disclose that the defendant had not timely filed a notice
of transfer of a workers’ compensation claim to the
Second Injury Fund, which exposed the plaintiff to lia-
bility. Id., 139–42. Vanliner Ins. Co. is distinguishable
precisely because the defendant in that case continued
to represent the plaintiff in proceedings relating to the
claim during the relevant period. Id., 127–28, 131. There
was an unchallenged factual finding that the defendant
in Vanliner Ins. Co. continued to act as the plaintiff’s
agent. Id., 140–41. The defendant in the present case did
not continue to act in any such representative capacity.
We conclude that the evidence did not establish that
any existing fiduciary relationship between the parties
continued through October, 2010.
B
This conclusion does not, however, end our inquiry.
The plaintiff also relies on case law in which our appel-
late courts have recognized that a duty to warn or cor-
rect a mistake may extend after the termination of the
special relationship that gave rise to that duty. Our case
law has not made it clear whether this basis for tolling
falls under the special relationship prong or the later
wrongful conduct prong. However, with one limited
exception, which we discuss in part II of this opinion,
all of the cases involving this basis arise following the
termination of a special relationship. Therefore, we ana-
lyze this basis under the special relationship prong. We
conclude that the limited circumstances under which
such a duty would continue were not satisfied in the
present case.
As a general matter, ‘‘the continuing course of con-
duct is not the failure of the alleged tortfeasor to notify
the plaintiff of his wrongdoing.’’ Connell v. Colwell, 214
Conn. 242, 255, 571 A.2d 116 (1990); see also Flannery
v. Singer Asset Financial Co., LLC, supra, 312 Conn.
321–22 (argument that former attorney’s ongoing failure
to confess his earlier tortious act tolled limitation period
would make statute of limitations illusory). A duty to
warn or take corrective action that could reveal such
wrongdoing may continue after a fiduciary or confiden-
tial relationship terminates, however, if the defendant
has actual knowledge of the underlying facts and their
significance. See Martinelli v. Fusi, supra, 290 Conn.
363 (‘‘in all of those cases in which we have imposed
a continuing duty on the defendant in the absence of
an ongoing physician-patient relationship, the plaintiff
had submitted at least some subjective evidence that
the defendant was actually aware of the requisite under-
lying facts’’ [emphasis omitted]); Neuhaus v. DeChol-
noky, 280 Conn. 190, 203, 905 A.2d 1135 (2006) (‘‘ ‘a
continuing duty must rest on the factual bedrock of
actual knowledge’ ’’).11
Such a duty will continue only as long as there
remains an opportunity to cure, or at least mitigate, the
injury from the initial breach that gave rise to the cause
of action. See Targonski v. Clebowicz, 142 Conn. App.
97, 110, 63 A.3d 1001 (2013) (‘‘[E]ven after an attorney’s
representation of a client ends, he owes a duty to his
client, which relates back to his original wrong of ren-
dering negligent services to the client, to correct the
results of such prior negligence if he later learns of the
negligence at a time when he has the power to remedy
the problems arising from it. . . . By force of simple
logic, this duty continues until such time as he takes
action to cure his prior negligence or the opportunity
to cure such prior negligence ceases to exist.’’ [Citation
omitted.]); Sanborn v. Greenwald, supra, 39 Conn. App.
297 (‘‘The defendant . . . had no continuing duty to
notify the plaintiff of the alleged mistake in the stipula-
tion in the absence of proof that he subsequently
learned that his drafting was negligent. . . . The defen-
dant’s professional representation had ended . . . .
Further, the defendant was not capable of remedying
any problems with the stipulation once it had been
approved by the trial court . . . .’’ [Citations omit-
ted.]).12 This limitation is compelled by the policy under-
lying this tolling doctrine, namely, that ‘‘specific tortious
acts or omissions may be difficult to identify and may
yet be remedied.’’ (Emphasis added; internal quotation
marks omitted.) Watts v. Chittenden, 301 Conn. 575,
583–84, 22 A.3d 1214 (2011).
The plaintiff’s argument founders on the actual
knowledge requirement. Although it asserts in its brief
to this court that the defendant had actual knowledge
of Intervest’s mortgagee interest before the plaintiff
issued the final Villas check, it took a markedly different
tack at trial. The plaintiff did not assert any claims of
intentional misconduct. At trial, the plaintiff effectively
conceded to the court, in a pretrial proceeding, and
to the jury, both in its counsel’s cross-examination of
Oberpriller and Martin, and in counsel’s closing argu-
ment, that the defendant did not have actual knowledge
of the mortgage schedule. In those statements, the plain-
tiff’s counsel plainly acknowledged that the plaintiff
was not claiming that the defendant’s failure to disclose
the mortgage information in the Aspen file was inten-
tional.13 Instead, the plaintiff’s counsel emphasized that
the plaintiff’s claim was that the defendant had been
negligent because the information was in its file, and,
because if Oberpriller had looked in that file, he could
have discovered that information and in turn disclosed
it. See footnote 13 of this opinion. In other words, the
plaintiff’s theory of the case was premised on the defen-
dant’s constructive knowledge based on its possession
of the information, not its subjective, actual knowledge.
Even if we could overlook the statements by the
plaintiff’s counsel and examine the entirety of the evi-
dence, as the plaintiff suggests we should do, we would
not be persuaded that there is a basis on which the jury
reasonably could have concluded that the defendant
had actual knowledge of Intervest’s mortgage interest
prior to the 2012 deposition proceedings.14 Both Martin
and Oberpriller testified that they had no recollection
of ever seeing the schedule of mortgagees during the
relevant time frame. The evidence regarding the respec-
tive roles of Martin and Oberpriller in the adjustment
process, and the management of paperwork received,
was consistent with this testimony. Although Ober-
priller took action in response to the letter that was
accompanied by the schedule, that letter did not refer
to the Villas or Intervest; nor did it make clear that the
enclosed document provided mortgagee information
for any property other than Park Apartments. In sum,
the evidence established that a secretary filed the sched-
ule, unseen by any person who might have recognized
its significance, in a thin file that was never incorpo-
rated into Oberpriller’s working file.
We recognize that the sufficiency of evidence is
viewed in the light most favorable to sustaining the
jury’s verdict. See Doe v. Hartford Roman Catholic
Diocesan Corp., 317 Conn. 357, 370–71, 119 A.3d 462(2015); see also Gronowski v. Spencer, 424 F.3d 285, 291
(2d Cir. 2005) (applying similar standard under federal
law). In that vein, we are mindful that the jury was free
to discredit testimony from Martin and Oberpriller as
to their lack of knowledge. Nonetheless, the jury was
not free to conclude from that rejection that the oppo-
site of the testimony is true. See Burns v. Adler, 325
Conn. 14, 40 n.17, 155 A.3d 1223 (2017); State v. Alfonso,
195 Conn. 624, 634, 490 A.2d 75 (1985). There was no
evidentiary basis to conclude that the defendant had
actual knowledge of Intervest’s mortgage interest. Cf.
Bednarz v. Eye Physicians of Central Connecticut,
P.C., 287 Conn. 158, 167, 947 A.2d 291 (2008) (there
was genuine issue of material fact as to whether defen-
dant had actual knowledge of test result in plaintiff’s
medical records when defendant denied knowledge and
plaintiff presented expert testimony that defendant
would have known about such information).
This conclusion is in accord with the District Court’s
view of the record. That court’s decision is replete with
express or implicit conclusions that the evidence dem-
onstrates that the defendant had only constructive
knowledge.15 Nowhere is this evidenced more plainly
than the court’s statement that the defendant ‘‘did not
actually know of its omission until Martin discovered
the Aspen file in 2012.’’ Consistent with that view of the
evidence, the Second Circuit posited that the plaintiff
might be able to prevail under the later wrongful con-
duct prong of the tolling doctrine because certain post-
2007 events ‘‘could have put the [defendant] on notice
that something was amiss with its loss adjustment
work. Yet, throughout, [the defendant] failed to inform
the plaintiff about Intervest’s interest as a mortgagee.’’
(Emphasis added.) Evanston Ins. Co. v. William
Kramer & Associates, LLC, supra, 890 F.3d 51.
Therefore, on the basis of the record before us, we
conclude that the evidence is not legally sufficient to
establish a continuing duty on the basis of a special rela-
tionship.
II
The question that remains is whether the plaintiff
presented legally sufficient evidence to establish a
breach of a duty that continued after the final check was
issued through later wrongful conduct by the defendant
related to its prior omission. See Saint Bernard School
of Montville, Inc. v. Bank of America, supra, 312 Conn.
837. Such later wrongful conduct also may include acts
of omission. See, e.g., Flannery v. Singer Asset Finan-
cial Co., LLC, supra, 312 Conn. 312–13; Rosenfield v.
Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra,
69 Conn. App. 161. Again, to prevail under this theory
in the present case, the plaintiff had to prove that such
wrongful conduct continued until at least October, 2010.
The federal courts focused on the events occurring
during the course of the Intervest action. The District
Court concluded that the only post-2007 conduct by the
defendant that could possibly be considered wrongful
was its incomplete response to the 2009 subpoena.
Because that omission occurred more than three years
before commencement of the action, the District Court
concluded that the plaintiff could not prevail on that
basis. The Second Circuit suggested that the pretrial
proceedings in the Intervest action between 2009 and
2012 ‘‘could have put the defendant on notice that some-
thing was amiss in its loss adjustment work.’’ Evanston
Ins. Co. v. William Kramer & Associates, LLC, supra,
890 F.3d 51.
In its brief to this court, the plaintiff does not identify
any particular action by the defendant that constituted
later wrongful conduct. Rather, its argument is that the
defendant’s ongoing failure to disclose the existence
of Intervest’s mortgagee interest was later wrongful
conduct that continued until the defendant’s 2012 dis-
closure of the mortgagee schedule. For the reasons
previously set forth in part I B of this opinion, the
plaintiff cannot prevail on this basis.
We observe that, in the context of product liability
type cases of older vintage, this court recognized a
continuing duty to warn without requiring the defen-
dant’s actual knowledge of the condition.16 See Giglio
v. Connecticut Light & Power Co., 180 Conn. 230, 242,
429 A.2d 486 (1980) (there was later wrongful conduct
to support continuing course of conduct when defen-
dant installed defective safety switch on furnace and,
thereafter, in response to repeated complaints, gave
negligent instructions to plaintiff on how to respond);
Handler v. Remington Arms Co., 144 Conn. 316, 321,
130 A.2d 793 (1957) (applying continuing course of con-
duct doctrine to toll statute of limitations on basis of
continuing duty to warn of defective cartridge by manu-
facturer). Such cases are now governed by a different
statute of limitations; see General Statutes § 52-577a;
and we since have recognized that they implicate differ-
ent policy concerns. See Neuhaus v. DeCholnoky, supra,280 Conn. 203–204 (‘‘While there may be instances in
product liability situations where a continuing duty to
warn may emanate from a defect, without proof that
the manufacturer actually knew of the defect . . . the
same principle does not apply to a physician’s misdiag-
nosis. To apply such a doctrine to a medical misdiagno-
sis would, in effect, render the repose part of the statute
of limitations a nullity in any case of misdiagnosis. We
do not think that the language or policy of the statute
permits such a reading.’’ [Internal quotation marks omit-
ted.]); Nardi v. AA Electronic Security Engineering,
Inc., 32 Conn. App. 205, 213–14, 628 A.2d 991 (1993)
(rejecting plaintiff’s reliance on cases holding that con-
tinuing duty to warn arises from inherently dangerous
situation or defective product because complaint did
not allege inherently dangerous situation or defective
product, and telephone jack in that case, even if negli-
gently installed, did not pose unreasonable risk of per-
sonal injury sufficient to give rise to continuing duty to
warn); see also General Statutes § 52-572q (prescribing
conditions for product liability due to failure to provide
adequate warnings or instructions). As such, this line
of cases is inapplicable to the present case. Indeed,
the plaintiff does not contend before this court that
something short of actual knowledge would suffice.
Finally, insofar as the Second Circuit suggested the
possibility that the discovery efforts in the Intervest
action should have put the defendant on notice that
‘‘something was amiss’’ in its loss adjustment work, the
relevance of such a possibility to our continuing course
of conduct tolling doctrine is unclear. The Second Cir-
cuit may have had in mind the ‘‘storm warnings’’ doc-
trine it has adopted in the context of certain federal
actions that accrue upon discovery of the injury; see,
e.g., Staehr v. Hartford Financial Services Group, Inc.,
547 F.3d 406, 411 (2d Cir. 2008);17 but no such discovery
rule is applicable to § 52-577. To the extent that the
court may have been questioning whether we would
recognize a continuing duty to investigate as long as
any business relationship existed between the parties,
we would not. Generally, an agent’s duty to use reason-
able efforts to give his principal information that is
relevant to the affairs entrusted to him ends with the
termination of the agency. See 2 Restatement (Third),
supra, § 8.11, comment (c), p. 376.
In sum, the trial evidence is not legally sufficient to
support the jury’s finding that the statute of limitations
was tolled at least through October 21, 2010, thus ren-
dering the plaintiff’s action timely under the continuing
course of conduct doctrine, on the basis of either a
special relationship or later wrongful conduct.
We answer the certified question ‘‘no.’’
No costs shall be taxed in this court to either party.
In this opinion the other justices concurred.
1
The case as captioned in the Second Circuit reflects that Evanston Insur-
ance Company is the successor company to the plaintiff; as the Second
Circuit noted, ‘‘there is no meaningful difference for purposes of this appeal
. . . .’’ Evanston Ins. Co. v. William Kramer & Associates, LLC, supra, 890
F.3d 42 n.2.
2
Another insurance company shared equally with the plaintiff the second
layer of coverage of $10 million. We omit any discussion of that insurer as
their liability is not relevant to this case.
3
Although the attorneys in this case have referred to this file as the ‘‘Aspen
file,’’ Martin testified that the defendant’s employees never referred to it as
such. Nonetheless, it appears uncontested that this file contained informa-
tion relating to claims for which Aspen provided coverage.
4
These misstatements appear to stem from several sources. IDM’s Aspen
policy listed mortgagee endorsements for the three other IDM properties
but not for the Villas. According to Oberpriller’s testimony, two principals
of IDM also repeatedly and emphatically represented to the defendant that
there was no mortgage on the Villas. The plaintiff’s executive claims exam-
iner testified that the plaintiff did not expect the defendant to conduct a
title search on the property as part of the loss adjustment process.
5
IDM negotiated the policy checks without paying off the mortgage. There-
after, it failed to repair the property, to pay property tax, and to continue
making mortgage payments. The property was foreclosed.
6
In response to a question asking what Martin had done when he received
the notice of deposition, which appears to have been accompanied by a
subpoena duces tecum, he testified: ‘‘I had a new secretary then, Brenda.
She went back through my file, an off-site storage, she found this file, this
first file, C7-289, which is our office file, separate from those two boxes we
had supplied earlier. This is just a file that she would keep in Tampa. When
she got paperwork on the file, she would put it in that file. You got to
remember, we had seven hundred files like this at one time.’’ Martin
described the file as thin.
7
Although the defendant asserted a special defense that the action was
time barred, it did not move for summary judgment on that ground, instead
advancing that issue in its proposed jury instructions.
8
Although we have stated that ‘‘some actors are per se fiduciaries by
nature of the functions they perform . . . includ[ing] agents’’; Iacurci v.
Sax, 313 Conn. 786, 800, 99 A.3d 1145 (2014); it is an open question as to
whether every act undertaken by one’s agent implicates fiduciary duties.
Compare Konover Development Corp. v. Zeller, 228 Conn. 206, 223, 635 A.2d
798 (1994) (noting that, because relative sophistication of parties may impact
fiduciary obligations, ‘‘[s]imply classifying a party as a fiduciary inadequately
characterizes the nature of the relationship’’), and 1 Restatement (Third),
Agency § 1.01, comment (e), p. 23 (2006) (‘‘[f]iduciary duty does not necessar-
ily extend to all elements of an agency relationship’’), with Taylor v. Hamden
Hall School, Inc., 149 Conn. 545, 552, 182 A.2d 615 (1962) (‘‘[a]n agent is a
fiduciary with respect to matters within the scope of his agency’’).
9
See, e.g., Fichera v. Mine Hill Corp., 207 Conn. 204, 210, 541 A.2d 472(1988) (contractual relationship of vendor-vendee in sale of land did not
give rise to obligations equivalent to those of fiduciary, and, thus, no continu-
ing duty was imposed on defendants as perpetrators of fraud to disclose
prior lack of candor to plaintiffs); Iacurci v. Sax, supra, 313 Conn. 801–802
(relationship between tax return preparer, including accountant, and its
client generally is not fiduciary in nature); Saint Bernard School of Montville,
Inc. v. Bank of America, supra, 312 Conn. 836–37 (relationship between
depositor and bank is not fiduciary or confidential relationship).
10
The District Court noted the plaintiff’s payment of the defendant’s litiga-
tion expenses in connection with the Intervest discovery and concluded
that the jury reasonably could have inferred that the defendant acted ‘‘in
some form as [the plaintiff’s] ‘agent,’ ’’ and, thus, owed the plaintiff a duty
of care in responding to the subpoena. The court further concluded that
this duty was not a continuation of the original duty of care of adjusting
the Villas claim, but a different duty. We view the facts through a different
lens. We need not determine whether the defendant’s acceptance of payment
to cover legal expenses gave rise to a duty of care owed to the plaintiff
because, in any event, no agency relationship was continued, renewed or
created by the payment of such expenses. We need not answer the question
raised by the Second Circuit as to whether the continuing duty must be the
identical duty giving rise to the original breach or merely a related duty,
because no agency relationship between the parties existed in connection
with the subpoena compliance.
11
See, e.g., Martinelli v. Fusi, supra, 290 Conn. 364–65 (recognizing contin-
uing duty could arise based on actual knowledge of condition requiring
treatment but concluding that evidence did not support such knowledge);
Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158,
167–68, 947 A.2d 291 (2008) (there existed genuine issue of material fact
with respect to whether statute of limitations had been tolled by later
wrongful conduct to support continuing course of conduct when plaintiff
presented evidence from which jury reasonably could infer that defendant
ophthalmologist had actual knowledge of plaintiff’s CAT scan in medical
records showing brain tumor and defendant’s ongoing failure to warn plain-
tiff after his retirement from medical practice); Neuhaus v. DeCholnoky,
supra, 280 Conn. 196, 205 (no continuing duty in absence of evidence that
hospital neonatologist ‘‘actually had an initial concern about [baby’s] progno-
sis, or that he subsequently became aware that his original assessment of
[baby’s] prognosis may have been incorrect’’); Witt v. St. Vincent’s Medical
Center, 252 Conn. 363, 372, 746 A.2d 753 (2000) (later wrongful conduct to
support continuing course of conduct could be established by defendant
pathologist’s knowledge of facts that caused concern for possibility of cancer
at time of initial tests, which gave rise to continuing duty to warn); Sherwood
v. Danbury Hospital, 252 Conn. 193, 211 n.15, 746 A.2d 730 (2000) (noting
that prior case law establishes that ‘‘a physician may have a duty to correct
a previous misdiagnosis when that physician gains knowledge of his or her
mistake, without regard to whether the patient continues to maintain a
relationship with the physician’’).
Some of these cases suggest that such a duty may continue even if the
facts become known to the defendant after the relationship terminates. See,
e.g., Neuhaus v. DeCholnoky, supra, 280 Conn. 205; Sherwood v. Danbury
Hospital, supra, 252 Conn. 211 n.15. Although we have not had a case in
which the continuous course of conduct doctrine was satisfied under such
facts, we observe that, in any event, the defendant would necessarily have
to gain such knowledge before the limitation period expired.
12
Compare Robbins v. McGuinness, 178 Conn. 258, 261–62, 423 A.2d 897(1979) (no continuing duty to warn former client about results of title
search performed in connection with completed land transaction), and Lee
v. Brenner, Saltzman & Wallman, LLP, 128 Conn. App. 250, 251, 258–59,
15 A.3d 1215 (no continuing duty to warn plaintiff of alleged breach of
fiduciary duty in connection with concluded representation, which involved
drafting of corporation’s employment and stockholder agreements), cert.
denied, 301 Conn. 926, 22 A.3d 1277 (2011), with Haas v. Haas, 137 Conn.
App. 424, 428, 430–31, 48 A.3d 713 (2012) (defendant breached continuing
duty after he failed to file plaintiff’s tax returns for several years, placed his
own name on plaintiff’s brokerage accounts, causing plaintiff to accumulate
liabilities, subsequently withheld documents in his possession that poten-
tially could have reduced or eliminated plaintiff’s tax liabilities, and impeded
discovery in action to identify assets that remained under defendant’s con-
trol), and Vanliner Ins. Co. v. Fay, supra, 98 Conn. App. 125 (insurance
adjuster breached continuing duty when, after having failed to file timely
notice of transfer of workers’ compensation claim to Second Injury Fund,
adjuster’s failure to inform insurer of timeliness problem prevented insurer
from taking steps ‘‘to rectify [the adjuster’s] initial breach’’); see also Flan-
nery v. Singer Asset Financial Co., LLC, supra, 312 Conn. 319 (‘‘[Our
appellate cases addressing the continuous course of conduct doctrine in
the attorney-client context] generally reject the notion that the attorney has
a continuing duty to the client to correct or report an earlier wrong that,
if left unsatisfied, would toll the statute of limitations. They recognize that
imposing a continuing duty in such circumstances is futile because, once
representation ceases, the initial wrong typically is complete, and in the usual
situation, it no longer can be undone by the attorney.’’ [Footnote omitted.]).
13
In its response to the trial court’s order to show cause why the complaint
was not barred by the statute of limitations, the plaintiff argued: ‘‘[The
defendant’s] subsequent wrongs are related to its prior wrongful act, by
way of example failing to look in, discover and/or have knowledge of its
own files.’’ In a subsequent pretrial conference addressing whether the
plaintiff could establish tolling under the continuing course of conduct
doctrine, the plaintiff’s counsel asserted that the 2009 subpoena provided
‘‘an opportunity at that point . . . for [the defendant] to discover that [mort-
gagee schedule] . . . . So it’s certainly not an intentional allegation, but
we think it rises to the level of negligence.’’
At trial, in response to Martin’s testimony that he had ‘‘never seen’’ the
Aspen file, the plaintiff’s counsel stated: ‘‘I know. And I’m not saying that
you’re—at the time that you had seen it. There is no intentional claim against
[the defendant] in this case, sir. It’s a negligence case. You understand that,
right? . . . It’s what you knew or should have known, right? . . . And you
should have known what was in your own files, right?’’
In its memorandum in opposition to the defendant’s motion for judgment
as a matter of law, the plaintiff pointed to Oberpriller’s testimony in which
he answered affirmatively to the following question: ‘‘Would you agree with
me, sir, that had you looked in [the defendant’s file], or had you looked at
this particular letter that was addressed to you . . . that you could have
seen on the schedule of mortgages that were included with it that the Villas
did have a mortgagee?’’ (Emphasis added.)
This testimony was emphasized by the plaintiff’s counsel in closing argu-
ment. At the initial closing argument, the plaintiff’s counsel stated: ‘‘And
what did [Oberpriller] say? He said, if I had looked in my own file, I would
have known the information. And he said if I had that information, I would
have changed my reports. It’s negligence. Not intentional. We’re not saying
they did this and don’t tell anyone. The subpoena’s here, we’re going to
hide this in our office. But it rises to negligence. They had the duty by law.’’
In rebuttal closing argument, the plaintiff’s counsel reiterated: ‘‘I asked . . .
Oberpriller in his deposition, if he had known about [the Intervest mortgage]
you would have changed your reports? Yes. But he didn’t change them. And
that’s the negligence.’’
14
In its reply brief, the plaintiff points to a check from Aspen naming
Intervest as a payee, as evidence of the defendant’s actual knowledge,
accompanied by a letter sent under Oberpriller’s name via his secretary.
We note that the record certified to this court does not reflect that this
check was admitted at trial as a full exhibit; it only reflects that this exhibit
was appended to the plaintiff’s complaint. None of the trial testimony pro-
vided to this court refers to it, and there is no mention of it in either the
District Court’s decision or the Second Circuit’s order. Therefore, we express
no opinion as to whether the jury could have found actual knowledge on
the basis of this check, despite the plaintiff’s statements implicitly acknowl-
edging the defendant’s lack of actual knowledge of Intervest’s mortgagee
interest.
15
The court’s decision states: ‘‘[The plaintiff] feared that [the defendant’s]
constructive knowledge that Intervest was a mortgagee on the Villas would
be imputed to [the plaintiff] . . . .’’ The court rejected the proposition that
the defendant ‘‘was indefinitely bound to recheck its files to ensure that its
earlier statement that there was no mortgagee interest on the Villas was
indeed correct.’’ The court further stated that ‘‘[t]he fact that [the defendant]
had a limited ongoing duty to advise [the plaintiff] if, in the future, it learned
something new about the Villas is not the same as an ongoing duty to correct
prior wrongful conduct of which it was not aware.’’ The court questioned
imposing a continuing duty on the defendant to ‘‘correct its inadvertent
omission,’’ discussed the defendant’s duty ‘‘[i]f . . . there had been evidence
showing that . . . [the defendant] had, after 2007, come across a reason
to become concerned that it was wrong about there being no mortgagee,’’
and stated that, ‘‘[a]rguably, [the defendant] also had a duty that continued
throughout the pendency of the Intervest action to supplement its subpoena
response in the event it became aware of other documents in its possession.’’
16
In Sherwood v. Danbury Hospital, 252 Conn. 193, 208–209, 746 A.2d
730 (2000), we recognized a continuing duty to warn under the later wrongful
conduct prong without determining whether a special relationship existed
between the plaintiff patient and the defendant hospital performing the
blood transfusion that gave rise to the injury. However, in the second appeal
in that case following our remand, this court underscored that the continuing
duty recognized in the first appeal rested on an allegation that the defendant
had administered the blood transfusion knowing that the blood had not
been tested for HIV but failed to advise the plaintiff of that fact. See Sherwood
v. Danbury Hospital, 278 Conn. 163, 189–90, 896 A.2d 777 (2006).
17
In Staehr, for example, the court explained: ‘‘The [two year] statute of
limitations for securities fraud claims under the [Securities] Exchange Act
[of 1934] begins to run only after the plaintiff obtains actual knowledge of
the facts giving rise to the action or notice of the facts, which in the exercise
of reasonable diligence, would have led to actual knowledge. . . . When
there is no actual knowledge, but the circumstances would suggest to an
investor of ordinary intelligence the probability that she has been defrauded,
a duty of inquiry arises, and knowledge will be imputed to the investor who
does not make such an inquiry. Dodds v. Cigna [Securities, Inc.], 12 F.3d
346, 350 (2d Cir. 1993). Such circumstances are often analogized to storm
warnings. Id.’’ (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Staehr v. Hartford Financial Services Group, Inc., supra,
547 F.3d 411; accord Rosenshein v. Meshel, 688 Fed. Appx. 60, 63 (2d Cir.
2017) (applying doctrine to Racketeer Influenced and Corrupt Organizations
Act [RICO] action); see also In re Trilegiant Corp., 11 F. Supp. 3d 82, 106
(D. Conn. 2014) (referring to doctrine as ‘‘ ‘storm clouds’ ’’), aff’d sub nom.
Williams v. Affinion Group, LLC, 889 F.3d 116 (2d Cir. 2018).