Rosenthal v. Town of Bloomfield , 178 Conn. App. 258 ( 2017 )

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DANIEL ROSENTHAL ET AL. v. TOWN OF
BLOOMFIELD ET AL.
(AC 38893)
Lavine, Kahn and Bishop, Js.*
Syllabus
The plaintiffs, a group of retirees from the police department of the defendant
town of Bloomfield, brought this action for, inter alia, breach of contract
in connection with the plaintiffs’ 1994 retirement pension plan, which
was part of a collective bargaining agreement between the town and
the plaintiffs’ union. The 1994 pension plan provided that the town would
make available to qualifying retirees and their enrolled dependents a
certain health insurance plan. The pension plan subsequently was
amended to provide that the town would make available the agreed on
health insurance plan or a comparable plan. Thereafter, the town entered
into an employment agreement with the union that changed the health
insurance plan to a different plan, which increased certain co-payments
and eliminated others. The town also notified the plaintiffs that the
employment agreement was applicable to them. The plaintiffs then com-
menced the present action, claiming that the town had breached the
terms of their 1994 pension plan by changing their health insurance plan
to a plan that was not comparable because the new plan increased co-
payments for certain medical and health care services. After the plaintiffs
submitted an offer of proof, the town filed a motion for a judgment of
dismissal for failure to make out a prima facie case pursuant to the
applicable rule of practice (§ 15-8). The trial court granted the town’s
motion and rendered judgment thereon, finding that, pursuant to Poole
v. Waterbury (266 Conn. 68), the plaintiffs had failed to set forth a prima
facie case of breach of contract. On the plaintiffs’ appeal to this court,
held that the trial court did not err in granting the town’s motion for a
judgment of dismissal, the plaintiffs having failed, as a matter of law,
to set forth sufficient evidence that, if believed, would establish a prima
facie case of breach of contract; the plaintiffs failed to establish any
significant changes or reduction in their benefits and, thus, failed to
demonstrate, in accordance with Poole, that the insurance benefits under
the new health insurance plan were not substantially commensurate with
the benefits under the prior plan when viewing the group of plaintiffs
as a whole, as the increase in some co-payments while eliminating
others did not demonstrate that the plaintiffs’ benefits as a group were
significantly reduced or not comparable to their benefits under the
prior plan.
Argued September 11—officially released November 28, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Hon. Jerry Wagner, judge trial referee, granted
the defendants’ motion to strike; thereafter, the court,
Elgo, J., granted the named defendant’s motion to bifur-
cate the issues of liability and damages; subsequently,
the case was tried to the court, Elgo, J.; thereafter,
the court granted the named defendant’s motion for a
judgment of dismissal and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Affirmed.
Rachel M. Baird, with whom, on the brief, was Mitch-
ell Lake, for the appellants (plaintiffs).
William A. Ryan, with whom was Ian E. Bjorkman,
for the appellee (named defendant).
Opinion
KAHN, J. The plaintiffs, a group of twenty-four retir-
ees from the Bloomfield Police Department,1 appeal
from the judgment of the trial court granting the motion
for a judgment of dismissal filed by the defendant town
of Bloomfield (town)2 pursuant to Practice Book § 15-8
for failure to make out a prima facie case. The plaintiffs
claim that the court erred in so ruling because the
evidence submitted set forth a prima facie case that
the town breached the parties’ collective bargaining
agreement by failing to offer insurance benefits that
are comparable to benefits under a prior health insur-
ance plan. We disagree and affirm the judgment of the
trial court.
There is no dispute as to the language of the applica-
ble provision, § 17 (1) (B) of the plaintiffs’ pension
retirement plan (1994 pension plan), which was formed
pursuant to a 1994 collective bargaining agreement
(1994 agreement) between the town and the plaintiffs’
union, the International Brotherhood of Police Officers,
Local 335. Section § 17 (1) (B) of the 1994 pension plan
stated in relevant part: ‘‘The Town shall make available
to each full-time employee who retires after July 1, 1989
and his/her enrolled dependents Major Medical, Blue
Cross Hospitalization and Blue Shield coverage as if
the said retired employee were still working . . . .’’3
The 1994 pension plan, however, subsequently was
amended several times, including on February 2, 1995,
when the word ‘‘still’’ was removed from § 17 (1) (B)
and the phrase ‘‘or comparable insurance’’ was added.
The revised section stated in relevant part: ‘‘The Town
shall make available to each full time employee who
retires after July 1, 1989 and his/her enrolled depen-
dents Major Medical, Blue Cross Hospitalization and
Blue Shield coverage, or comparable insurance, as if
the said retired employee were working.’’ (Emphasis
added.)4 The parties agreed and the trial court con-
cluded that ‘‘comparable’’ did not mean ‘‘the same,’’ and,
as such, the unambiguous contract language manifested
the intent of the parties that the town have some flexibil-
ity to offer health insurance plans that were not exactly
the same as the existing plan.
On October 19, 2012, the town entered into an
employment agreement with the United Public Service
Employees Union/COPS, Unit #14 (2012 agreement),
which changed the health insurance plan under the
1994 pension plan to the ‘‘Anthem Blue Cross Century
Preferred $20 Co-pay plan with a 3-Tier Prescription
Drug benefit’’ (Century Preferred $20 plan). Effective
September 1, 2012, this agreement also applied to
retired employees who had not yet reached sixty-five
years of age and their dependents. On July 20, 2012, the
town provided the plaintiffs with notice of this change.
The plaintiffs commenced this action alleging, inter
alia, that the town breached the terms of the 1994 pen-
sion plan by changing their health insurance plan to a
plan that is not comparable.5 Specifically, the plaintiffs
argued that the 2012 agreement resulted in a 50 percent
increase in co-pays for emergency room visits (from
$50 to $75), a 100 percent increase in co-pays for office
visits (from $10 to $20), an increase for emergency room
visits from $0 to $100, and a 100 percent increase in
urgent care co-pays (from $25 to $50). The plaintiffs
sought to compel the town to provide the medical and
health care benefits in place prior to September 1, 2012.
The plaintiffs sought an injunction, monetary damages
and attorney’s fees and costs.
At the commencement of trial on September 29, 2015,
the court bifurcated the proceeding so that liability
would be determined prior to the issue of damages.
The liability issue presented was whether the Century
Preferred $20 plan was comparable to the ‘‘Major Medi-
cal, Blue Cross Hospitalization and Blue Shield Cover-
age,’’ referenced in § 17 (1) (B) of the 1994 pension
plan. After a discussion, the plaintiffs agreed that they
would proceed with the trial on this issue by submitting
an offer of proof on their claim that the Century Pre-
ferred $20 plan was not comparable to the 1994 pension
plan. The parties also agreed to the admission into evi-
dence of the 1994 agreement and the 1995 and 2000
amendments thereto. On October 5, 2015, the plaintiffs
filed their offer of proof with the court. The town filed a
motion for a judgment of dismissal pursuant to Practice
Book § 15-8 on the basis that the plaintiffs had set forth
insufficient evidence to establish a prima facie case in
support of their complaint. The court granted the
motion, finding that the contract language was unam-
biguous; that Poole v. Waterbury, 266 Conn. 68, 831
A.2d 211 (2003), was controlling; and that the plaintiffs
had not set forth a prima facie case of breach of con-
tract.6 This appeal followed.
‘‘The standard for determining whether the plaintiff
has made out a prima facie case, under Practice Book
§ 15-8, is whether the plaintiff put forth sufficient evi-
dence that, if believed, would establish a prima facie
case, not whether the trier of fact believes it. . . . For
the court to grant the motion [for judgment of dismissal
pursuant to Practice Book § 15-8], it must be of the
opinion that the plaintiff has failed to make out a prima
facie case. In testing the sufficiency of the evidence,
the court compares the evidence with the allegations
of the complaint. . . . In order to establish a prima
facie case, the proponent must submit evidence which,
if credited, is sufficient to establish the fact or facts
which it is adduced to prove. . . . [T]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Gambardella v.
Apple Health Care, Inc., 86 Conn. App. 842, 846, 863
A.2d 735 (2005). ‘‘Whether the plaintiff has made out a
prima facie case is a question of law, over which our
review is plenary.’’ Moss v. Foster, 96 Conn. App. 369,
378, 900 A.2d 548 (2006).
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages.’’ (Internal quotation marks omitted.) Chiulli v.
Zola, 97 Conn. App. 699, 706–707, 905 A.2d 1236 (2006).
‘‘Although ordinarily the question of contract interpre-
tation, being a question of the parties’ intent, is a ques-
tion of fact . . . [w]here there is definitive contract
language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law.’’ (Internal quotation marks omitted.) Poole
v. Waterbury, supra, 266 Conn. 88.
Here, there is no dispute as to the interpretation of
the language of the 1994 pension plan, as amended, or
the benefits and terms of the various health care plans.
At issue is whether the Century Preferred $20 plan
violated the term of the 1994 pension plan requiring
comparable insurance as governed by Poole. Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003) defines
‘‘comparable’’ as ‘‘similar, like.’’
In Poole, retired firefighters filed an action against
the defendant city when the city unilaterally switched
the retirees from the traditional indemnity plan that the
firefighters had, as the result of collective bargaining
agreements, to a managed health care plan. Id., 71–73.
The trial court held that the retirees had a vested con-
tractual right in the health care plan referenced in the
collective bargaining agreements. Id., 78. On appeal, our
Supreme Court determined that although the retirees’
rights to their retirement benefits had vested, the retir-
ees did not have a vested right in precisely the same
health care plan that was in effect at the time of their
retirement. Id, 99–106. The Supreme Court determined
that the language of the collective bargaining
agreements in that case unambiguously ‘‘manifest[ed]
the parties’ intent that the city retain the right to make
limited modifications to the benefits plan.’’ Id., 100.
In Poole, there were three areas of change between
the traditional indemnity plan and the managed health
care plan affecting the retirees: (1) the imposition of a
$5 to $15 co-payment for each health service utilized;
(2) full costs not paid if the service provider is out of
network; and (3) the insurer maintaining a schedule
of the presumptive amount of services necessary per
medical condition instead of the physician determining
the amount of services necessary. Id., 105–106. The
Supreme Court noted the trial court’s findings that
although ‘‘a managed health care plan is inherently less
flexible than the traditional indemnity plan, it is by no
means certain from the evidence that a given benefi-
ciary will always fare worse under the new health care
plan than the old. . . . Depending on what health prob-
lems occur for a specific beneficiary and what services
or prescription medications are necessary, the evidence
demonstrated that there are situations in which the out-
of-pocket costs can indeed be greater under the old
plan than the new.’’ (Internal quotation marks omitted.)
Id., 107. The Supreme Court concluded that the retirees
did not establish that the differences between the plans
‘‘resulted in a new plan that either substantially reduced
the provision of services or substantially increased the
cost to the group of plaintiffs as a whole. Accordingly,
the modifications made by the defendants affected the
form, and not materially the substance, of the vested
benefit.’’ (Footnote omitted.) Id., 107.
In the present case, the plaintiffs argue that a prima
facie case for a breach of contract action had been set
forth because the plaintiffs’ insurance benefits under
the Century Preferred $20 plan are not comparable to
those under the 1994 pension plan. In support of their
claim, they point to increases in some of the co-pays.
Pursuant to Poole, in order for the plaintiffs to prevail,
they must demonstrate that the changes to their benefits
are not substantially commensurate with the benefits
provided under the 1994 agreement, when viewing the
group of plaintiffs as a whole. See id., 105.
The plaintiffs have not set forth a prima facie case that
the Century Preferred $20 plan was not substantially
commensurate to the 1994 pension plan. Although the
plaintiffs point to higher co-payments as the source
of changes between the plans, a review of the earlier
Century Preferred $10 and $5 co-pay plans with the
new Century Preferred $20 plan reveals that although,
under the new plan, some co-pays were higher, others,
such as preventative care and routine eye examinations,
no longer required co-payments. In response to an indi-
vidual plaintiff’s question about the Century Preferred
$20 plan, the human resources generalist for the town
noted that ‘‘there has not been a reduction in your
medical benefit coverage. All services previously
offered are still in effect—some no longer require co-
pays while others require higher co-pays.’’ Other than
the changes in co-pays, the plaintiffs failed to establish
any significant changes or reduction in benefits.
The increase in some co-payments while eliminating
others does not demonstrate that the benefits of the
plaintiffs as a whole were significantly reduced or not
comparable to their prior benefits. ‘‘It will not suffice
for the plaintiffs to demonstrate that the changes have
increased payments for some retired employees. The
changes should be examined for their effect on the
class of retirees as a whole, to determine if they have
significantly reduced their general level of benefits. In
addition, individual modifications should not be scruti-
nized in isolation. In other words, the changes must be
examined in their totality for their effect upon the class
of retirees as a group.’’ (Internal quotation marks omit-
ted.) Poole v. Waterbury, supra, 266 Conn. 104–105.
After conducting such a review, the trial court in the
present case concluded: ‘‘Given that the changes
described in Poole included not only co-payments but
more far-reaching changes than what are at issue here,
this court cannot conclude that the plaintiffs have
shown that the [Century Preferred $20] plan is not com-
parable to the earlier plans.’’ Because the plaintiffs have
not, as a matter of law, set forth sufficient evidence
that, if believed, would establish a prima facie case of
breach of contract, the trial court did not err in granting
the town’s motion for a judgment of dismissal.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiffs are Daniel Rosenthal, Jeffrey Blatter, John Maziarz, Judy
Smith, John Ferrigno, Mark Darin, Robert Lostimolo, Michelle Lostimolo,
Rebecca Leger, Lee Tager, Robert Black, John Swanson, Alan Cox, William
Brewer, Michael Driscoll, Sean Kenney, Steven Weisher, Richard Lyon, Jr.,
Elvis Fabi, Raymond Kitchens, Charlie Simmons, Alfred Delciampo, Cindi
Lloyd, and Doris Hudson.
2
The plaintiff also named Louie Chapman, Jr., William J. Hogan, and Cindy
Coville, all employees or officials of the town, as defendants. The court
granted the motion to strike the counts against these defendants based on
qualified immunity.
3
Section 17 (1) (B) of the 1994 pension plan also set forth the premium
cost sharing as follows: ‘‘The Town shall pay one hundred percent (100%)
of the retiree’s premium and sixty-six and two thirds percent (66-2/3%) of
the additional cost of dependent coverage and the retiree shall pay the
remaining costs.’’
4
On August 28, 2000, § 17 (1) (B) was amended, changing July 1, 1989 to
July 1, 1999.
5
The complaint also alleged unjust enrichment and ultra vires acts. The
court considered those claims abandoned due to the plaintiffs’ failure to
brief them, and granted the town’s motion for a judgment of dismissal as
to those claims as well. On appeal, the plaintiffs do not claim error as to
the court’s dismissal of those claims.
6
The plaintiffs do not challenge either the finding that the contract lan-
guage was unambiguous or that the interpretation of that language is gov-
erned by Poole v. Waterbury, supra, 266 Conn. 68.