Chicago Title Ins. Co. v. Accurate Title Searches, Inc. ( 2017 )

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CHICAGO TITLE INSURANCE COMPANY
v. ACCURATE TITLE SEARCHES, INC.
(AC 37869)
Sheldon, Prescott and Flynn, Js.
Argued October 6, 2016—officially released May 30, 2017
(Appeal from Superior Court, judicial district of
Hartford, Bright, J. [summary judgment motion]; Wiese,
J. [judgment])
Anthony E. DeCrosta, for the appellant-appellee
(defendant).
Gerald L. Garlick, for the appellee-appellant
(plaintiff).
Opinion
SHELDON, J. This is an action by the plaintiff, Chi-
cago Title Insurance Company (Chicago Title), to
recover damages from the defendant, Accurate Title
Searches, Inc., for losses allegedly incurred by Ticor
Title Insurance Company (Ticor Title), another title
insurer with which the plaintiff later merged,1 due to
the defendant’s negligence in performing a title search
as to a parcel of real property in Hartford (property).
In reliance upon that title search, Ticor Title issued a
lender’s title insurance policy (policy) for the property
to NationOne Mortgage Company, Inc. (NationOne), a
lender that took a note and mortgage on the property
from Janice Flemming, in exchange for a $208,000 loan
to finance her purchase of the property from its pur-
ported owner, Joseph M. Davis. The plaintiff incurred
the losses here complained of in investigating and set-
tling claims against NPL Investment Trust I (NPL Invest-
ment),2 which had become an insured under the policy
upon acquiring Flemming’s note and mortgage from
NationOne, by two entities claiming to have superior
interests in the property to those of NPL Investment.
One such claimant, Terry Road, LLC (Terry Road), alleg-
edly acquired its superior interest in the property pursu-
ant to a quitclaim deed from Davis dated February 22,
2006, which was recorded on the Hartford land records
on April 21, 2006. The other claimant, Connecticut
Attorneys Title Insurance Company (CATIC), allegedly
acquired its superior interest in the property pursuant
to a $500,000 attachment against Terry Road, which was
recorded on the Hartford land records on September 10,
2009.
After moving successfully for summary judgment on
the issue of the defendant’s liability for negligence, the
plaintiff presented two related claims for damages to
compensate it for losses allegedly caused by such negli-
gence, together with prejudgment interest on such dam-
ages pursuant to General Statutes § 37-3a, at two
separate hearings in damages. At an initial hearing in
damages, the plaintiff sought, and the trial court, Wiese,
J., awarded, $77,500 in damages to compensate it for
all sums it paid to settle the claims of Terry Road and
CATIC against NPL Investment. The court held that the
amount of that settlement, which had been negotiated
at arm’s length at a judicial pretrial, was reasonable,
and thus awarded it to the plaintiff as compensatory
damages in this action. At a second hearing in damages,
however, the same trial court, Wiese, J., denied the
plaintiff’s additional claim for damages to compensate
it for the attorney’s fees and expenses it had incurred
in investigating and resolving Terry Road’s and CATIC’s
counterclaims against NPL Investment, and denied the
plaintiff’s claim for prejudgment interest on its earlier
damages award under § 37-3a. The court based its rejec-
tion of the plaintiff’s additional claim for damages upon
its understanding of the so-called American rule,3 under
which parties bringing civil actions to recover damages
from alleged wrongdoers are generally required to pay
their own attorney’s fees and expenses to prosecute
such actions. The court rejected the plaintiff’s claim
for prejudgment interest on its earlier damages award
on the ground that that award was ‘‘an unliquidated
sum [that was neither] already payable prejudgment
nor wrongfully withheld.’’4
On appeal, the defendant claims that the trial court
erred in awarding the plaintiff compensatory damages
in the full amount of its settlement with Terry Road
and CATIC, without first requiring the plaintiff to prove
that NPL Investment was legally liable for, and thus
required to pay the settling parties, that entire amount.
This is so, claims the defendant, because the plaintiff’s
present claim sounds not in negligence but in common-
law indemnification,5 for which the plaintiff is only enti-
tled to recover damages for payments to third parties
which it was legally obligated to make. The defendant
argues that where, as here, a party from which a plaintiff
seeks indemnification for payment of an underlying
claim is not given notice of or an opportunity to defend
against that claim, the plaintiff, as would-be indemnitee,
must prove not only that the amount it seeks to recover
from the defendant, as alleged indemnitor, was a rea-
sonable amount to settle the claim, but that the plaintiff
was legally liable to pay the claimant that amount.
In its cross appeal, the plaintiff claims that the court
erred in ruling that the American rule precluded the
plaintiff from recovering, as an element of compensa-
tory damages, the attorney’s fees and expenses that
it incurred to investigate and settle Terry Road’s and
CATIC’s underlying claims against NPL Investment.
That rule, it argues, only bars a plaintiff from recovering
the attorney’s fees and expenses it has incurred in the
particular litigation in which such fees and costs are
sought, not those incurred in previous actions that the
plaintiff was forced to defend as a result of the defen-
dant’s negligence.
On the record before us, we agree with the trial court,
Bright, J., that the plaintiff’s claim sounds in negligence,
not in common-law identification, and thus that the
defendant’s arguments as to what proof is required to
prevail on a claim for indemnification are inapplicable
to this case. On the other hand, we disagree with the trial
court, Wiese, J., that the plaintiff’s claim for damages to
compensate it for the attorney’s fees and expenses it
incurred to defend its insured in prior litigation is
barred in this action by the American rule. Accordingly,
although we reverse the court’s judgment denying the
plaintiff’s claim for compensatory damages in the
amount of its prior attorney’s fees and expenses and
remand this case for further proceedings on that claim,
we affirm the court’s judgment in all other respects.
The following facts and procedural history are rele-
vant to our disposition of this appeal. In May, 2004,
Leroy R. McCalop was the record owner of the property
located at 108–110 Webster Street in Hartford. On May
19, 2004, McCalop issued a general warranty deed
(McCalop deed) which provided: ‘‘I, LEROY R. McCA-
LOP of 1417 Stafford Avenue Bristol, Connecticut 06010
for consideration of TWO HUNDRED THOUSAND AND
00/100 ($200,000.00) DOLLARS received to my full satis-
faction of JOSEPH M. DAVIS of 15 June Street, East
Hartford Connecticut do give, grant, bargain, sell and
confirm unto the said LEROY R. McCALOP . . . all
that certain piece or parcel of land . . . situated in the
Town of East Hartford, County of Hartford and State
of Connecticut, known as 108–110 Webster Street
. . . .’’6 That same day, Davis encumbered the property
with two mortgages in the aggregate amount of
$200,000. The McCalop deed and Davis’ two mortgages
were subsequently recorded on June 7, 2004. As recently
as February 2, 2006, Davis was listed as the property’s
account holder for municipal utilities and taxes.
Approximately two years after the McCalop deed was
executed, Davis purportedly conveyed the property, on
two separate occasions, to two different parties. The
first such conveyance took place on February 22, 2006,
when Davis delivered a quitclaim deed for the property
to Terry Road. This quitclaim deed was recorded on
April 21, 2006. Thereafter, Terry Road encumbered the
property with a $25,996 mortgage, which was recorded
on May 17, 2006. Davis’ second purported conveyance
of the property took place on July 13, 2006, when he
delivered a warranty deed for the property to Flemming
for $260,000. As consideration for the loan, Flemming
gave NationOne a note in the amount of $208,000
secured by a mortgage for the property. NationOne, in
turn, applied for a lender’s title insurance policy with
respect to the property with the plaintiff’s predecessor,
Ticor Title.7 In an effort to assess the quality of Davis’
title to the property, Ticor Title requested two title
searches with respect to the property.
On April 17, 2006, approximately two months after
Davis’ initial conveyance of the property by quitclaim
deed to Terry Road, but four days before that deed was
recorded, Ticor Title retained the defendant to perform
its first title search with respect to the property. Ticor
Title specified in its search order that it sought a ‘‘[f]ull
([forty plus] years)’’ search of the property, of which
the ‘‘current owner’’ was listed as ‘‘Joseph Davis.’’ Pur-
suant to this search order, the defendant conducted a
title search with respect to the property and submitted
a written report of its findings to ‘‘Patricia Kunz, [Ticor
Title].’’ According to that report, the search covered
the period starting on May 20, 1957, and ending on April
12, 2006, and revealed that the ‘‘most recent convey-
ance’’ of the property had been by warranty deed dated
May 19, 2004, from ‘‘Leroy R. McCalop,’’ as ‘‘grantor,’’
to ‘‘Joseph M. Davis or Leroy R. McCalop,’’ as ‘‘grantee,’’
which was recorded on June 7, 2004. Accordingly,
although the author of the report noted that there was
a ‘‘mistake in deed, in that it states consideration from
Davis but conveys property to McCalop,’’ the report
concluded that the ‘‘present title holder’’ of the property
was ‘‘Joseph M. Davis or Leroy R. McCalop.’’ The report
also noted Davis’ two mortgages on the property, which
had been recorded in June, 2004, and attached a printout
listing Davis as the then current account holder on the
property’s municipal utility bills.
Approximately two months after the first title search,
on June 13, 2006, the defendant conducted a second
title search with respect to the property, also on behalf
of Ticor Title. On this occasion, as on the first, the
defendant purportedly conducted another ‘‘full forty
year statutory search’’ with respect to the property,
albeit for a longer period, from May 20, 1957, until June
13, 2006, which ended approximately two months after
Terry Road’s quitclaim deed and one month after its
mortgage had been recorded on the Hartford land
records. In the written report of its findings based upon
this second title search, as in the earlier written report
based upon its first title search, the defendant once
again noted the apparent ‘‘mistake’’ in the McCalop
deed as well as Davis’ subsequently recorded mortgages
on the property. Despite these indications as to Davis’
possible title interest in the property, the defendant
failed to investigate Davis’ name in the grantor-grantee
index. Consequently, the defendant never found, and
the written report of its findings never mentioned, either
Terry Road’s quitclaim deed from Davis or its subse-
quent mortgage on the property, both of which were
recorded several weeks before the listed ending date
of the second title search. As a result of this omission,
Ticor Title, NationOne, and Flemming were all unaware,
at the time of Davis’ purported conveyance of the prop-
erty to Flemming, that Davis had previously transferred
all of his interest in the property to Terry Road.
On July 6, 2006, one week before the conveyance
from Davis to Flemming, McCalop issued a ‘‘corrective
warranty deed,’’ naming Davis as the intended grantee
of the 2004 McCalop deed.8 The following week, on July
13, 2006, Flemming obtained a mortgage from
NationOne in the amount of $208,000. In conjunction
with the Flemming mortgage, NationOne procured the
policy from Ticor Title, which had agreed to insure it, as
Flemming’s mortgagee, in reliance upon the defendant’s
title search reports. That same day, Davis executed a
warranty deed purporting to convey the property to
Flemming in exchange for $260,000.
By March 18, 2008, Flemming had defaulted on her
mortgage. Thereafter, the successor mortgagee, NPL
Investment, commenced an action to foreclose on the
property and recorded a lis pendens9 on the Hartford
land records. On October 1, 2009, NPL Investment filed
its amended complaint, alleging that Flemming had
defaulted on her mortgage and that both Terry Road
and CATIC held junior interests in the property.
After receiving notice of the pending action, both
Terry Road and CATIC filed answers and counterclaims
against NPL Investment and cross claims against Flem-
ming and other defendants. The counterclaims and
cross claims (hereinafter counterclaims) alleged that
NPL Investment’s mortgage was invalid because, by
virtue of Terry Road’s quitclaim deed from Davis, Davis
had no legal interest in the property to convey to Flem-
ming, and thus Flemming had no legal interest in the
property when she obtained her mortgage from
NationOne. In response to these allegations, NPL Invest-
ment filed a claim with the plaintiff10 under the policy
for $208,000, which was then the outstanding principal
balance on Flemming’s note.
After receiving NPL Investment’s claim under the
policy, the plaintiff reviewed the title search reports to
assess the validity of CATIC’s and Terry Road’s counter-
claims. Subsequent investigation revealed that the
defendant’s second title search report failed to disclose
either Terry Road’s quitclaim deed or its mortgage on
the property, both of which had been recorded prior
to June, 2006. On the basis of those findings, the plaintiff
entered into negotiations with CATIC and Terry Road,
on behalf of NPL Investment, in an effort to settle their
counterclaims, and thus to resolve NPL Investment’s
claim under the policy. Although CATIC and Terry Road
initially demanded $150,000 to settle their dispute with
NPL Investment, the parties ultimately agreed to settle
the matter for $77,500. Under the parties’ settlement
agreement, the plaintiff received a release of CATIC’s
interest in the property, a withdrawal of all legal claims
by both CATIC and Terry Road, and a quitclaim deed
from Terry Road to Flemming, which was issued on
July 6, 2011. Thereafter, on July 21, 2011, the plaintiff
issued a check in the amount of $77,500 to CATIC.
On March 5, 2012, plaintiff’s counsel sent a demand
letter to the defendant, seeking $77,500 in compensa-
tory damages as well as compensation for all fees and
expenses it had incurred in investigating and negotiat-
ing a settlement of the underlying claims against NPL
Investment. Prior to receiving this demand letter, the
defendant had not been notified of any alleged defects
in its title search reports with respect to the property,
the counterclaims brought against NPL Investment
based upon alleged defects in Flemming’s title to the
property, or the plaintiff’s negotiations with Terry Road
and CATIC to settle those counterclaims.
On August 10, 2012, the plaintiff filed its one count
operative complaint against the defendant in this action,
alleging that the defendant had been negligent in con-
ducting its title search with respect to the property.
Specifically, the plaintiff alleged that the defendant had
a duty to exercise reasonable care in performing the
title search, that it breached that duty by failing to
investigate Davis’ name in the grantor-grantee index,
and that that breach had caused the plaintiff to suffer
$77,500 in economic damages. On June 21, 2013, the
plaintiff filed a motion for summary judgment as to the
defendant’s liability only. In response to that motion,
the defendant filed a memorandum in opposition to
summary judgment in which it claimed, inter alia, that it
had not breached its duty of care, and that the plaintiff’s
failure to provide notice of the underlying counter-
claims precluded the plaintiff from asserting an indem-
nification claim against the defendant. On December
19, 2013, the trial court, Bright, J., granted the plaintiff’s
motion for summary judgment as to the defendant’s
liability. In its memorandum of decision, the court
rejected the defendant’s argument that this was an
indemnification action and held that the plaintiff had
demonstrated the absence of any genuine issue of mate-
rial fact as to the defendant’s negligence.
Thereafter, on October 2, 2014, the court, Wiese, J.,
held an initial hearing in damages. In its memorandum
of decision following that hearing, dated December 31,
2014, the court found that the plaintiff had satisfied its
burden of proving, by a preponderance of the evidence,
that it was reasonably entitled to recover $77,500 in
economic damages to compensate it for all sums paid
to settle the counterclaims of CATIC and Terry Road
against NPL Investment. The court initially declined,
however, to rule on the plaintiff’s claims for damages
for attorney’s fees and expenses it had incurred to inves-
tigate and settle the claims against NPL Investment,
and for prejudgment interest on the plaintiff’s claims
for damages.
A second hearing in damages was held on March 24,
2015, to address the latter claims for damages. Three
days later, the court, Wiese, J., issued a second memo-
randum of decision in which it held that the plaintiff
was not entitled to prejudgment interest on its damages
award and that, under the American rule, the plaintiff
was not entitled to recover damages from the defendant
in this action to compensate it for the attorney’s fees and
expenses it had incurred to investigate and negotiate a
settlement in the earlier action. Thereafter, the defen-
dant filed its appeal from the court’s judgment and
the plaintiff filed its cross appeal. Additional facts and
procedural history will be set forth as necessary.
I
The defendant raises two arguments on appeal. The
defendant first argues that, contrary to the holding of
the trial court, Bright, J., the plaintiff’s complaint states
a claim for common-law indemnification, and thus, con-
sistent with the principles of indemnification law, the
plaintiff was obligated to notify the defendant of the
counterclaims filed by Terry Road and CATIC prior
to negotiating a settlement agreement. The defendant
therefore argues that the plaintiff’s failure to notify it
of either the counterclaims or the plaintiff’s settlement
negotiations, until after the plaintiff was bound by the
terms of the settlement agreement, precluded the plain-
tiff from relying merely on the reasonableness of its
settlement agreement as the basis for awarding dam-
ages at the initial hearing in damages. Instead, the defen-
dant argues, the plaintiff was required to prove the
merits of CATIC’s and Terry Road’s counterclaims
against NPL Investment and to establish the plaintiff’s
liability for those counterclaims in the amount it agreed
to pay. In addition, in the last two pages of its brief to
this court, the defendant raises, albeit without meaning-
ful citation, a second argument that the court erred
in granting summary judgment as to the defendant’s
liability because the McCalop deed did not convey a
legal interest in the property to Davis, and thus that
Terry Road never acquired such an interest in the prop-
erty pursuant to its quitclaim deed from Davis. On that
basis, the defendant argues in a cursory manner that
summary judgment on the issue of liability should not
have been granted by the trial court. We address each
claim in turn.
A
We first address whether the plaintiff was obligated
to notify the defendant either of the counterclaims of
CATIC or Terry Road, or its settlement negotiations
with those claimants and, if so, what effect, if any, its
failure to give such notification had on the proof
required of it to establish its entitlement to recover
damages in the full amount it paid to settle that action.
Dispositive of this analysis is the threshold issue of
whether this is a claim for common-law indemnifica-
tion, as the defendant has asserted, rather than a claim
for negligence, as the plaintiff has consistently argued
and the trial court ruled. Because the sole basis for the
defendant’s argument that the plaintiff bears a special
burden of proof with respect to its liability for the under-
lying claims it settled and now seeks to be compensated
for is its contention that this is a common-law indemnifi-
cation claim, that argument must be rejected ab initio
if the present claim does not sound in common-law
indemnification. We conclude, for the following rea-
sons, that the plaintiff’s claim sounds in negligence,
not in common-law indemnification, and thus that the
defendant’s first challenge to the trial court’s judgment
must be rejected.11
The following factual and procedural history is neces-
sary to our resolution of this claim. The one count
operative complaint was filed on August 10, 2012. In
the second paragraph of the complaint, it was alleged
that the ‘‘[d]efendant performed a title search and
issued a title report in preparation for a mortgage loan
made by NationOne . . . to [Flemming] for her pur-
chase of the property known as 108–110 Webster Street,
Hartford, Connecticut . . . .’’ In the fourth paragraph
of the complaint, it was alleged that ‘‘in conjunction
with the Closing, NationOne purchased [the policy]
from Ticor Title, which . . . policy was issued in reli-
ance on the title search performed by [the] defendant.’’
(Emphasis added.) In the sixth and seventh paragraphs
of the complaint, the plaintiff alleged that ‘‘a claim was
subsequently made that [Flemming] was not the record
owner of the property’’ and, in response, the plaintiff
‘‘undertook to investigate the claim made under the
[policy] issued by Ticor Title, and, in 2011 . . .
incurred a loss by virtue of . . . paying $77,500 to
resolve that claim.’’ In the eighth and ninth paragraphs
of the complaint, the plaintiff alleged that the defendant
was negligent because, inter alia, the title search report
did not reflect the Terry Road deed and ‘‘the defendant
failed to exercise the degree of care, skill and/or dili-
gence employed by title searchers practicing under sim-
ilar circumstances.’’
We begin with our standard of review. ‘‘[T]he inter-
pretation of pleadings is always a question of law for
the court . . . . Our review of the trial court’s interpre-
tation of the pleadings therefore is plenary.’’ (Internal
quotation marks omitted.) Bross v. Hillside Acres, Inc.,
92 Conn. App. 773, 778, 887 A.2d 420 (2006). ‘‘[W]e have
long eschewed the notion that pleadings should be read
in a hypertechnical manner. Rather, [t]he modern trend,
which is followed in Connecticut, is to construe plead-
ings broadly and realistically, rather than narrowly and
technically. . . . [T]he complaint must be read in its
entirety in such a way as to give effect to the pleadings
with reference to the general theory upon which it pro-
ceeded, and to substantial justice between the parties.
. . . Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain
the bounds of rational comprehension. . . . [E]ssential
allegations may not be supplied by conjecture or remote
implication . . . .’’ (Internal quotation marks omitted.)
Stotler v. Dept. of Transportation, 142 Conn. App. 826,
839, 70 A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d
527 (2014).
The defendant advances two arguments as to why
this is a claim for common-law indemnification and
why the plaintiff, therefore, was required to provide the
defendant with timely notice of the underlying counter-
claims. The defendant first argues that, on the basis of
the facts presented, the plaintiff was passively negligent
for its losses and, therefore, its theory of recovery must
be that of common-law indemnification. Second, the
defendant emphasizes that the plaintiff incurred losses
as a result of its liability to a third party and, therefore,
the plaintiff’s claim to recover such damages is the
functional equivalent of a claim for indemnification. We
address each argument in turn.
1
In support of its first argument as to why this is a
claim of common-law indemnification, the defendant
asserts that ‘‘it has long been recognized that negligence
can form the basis of a claim for indemnification, if
the negligence of the indemnitee is passive and the
negligence of the indemnitor is active. . . . The plain-
tiff’s claim is obviously a claim for indemnification
based on active/passive negligence, and therefore the
consequences of not providing notice of the underlying
claim apply.’’ (Citation omitted.) The plaintiff, however,
argues that an action for common-law indemnification
requires the presence of two tortfeasors, and thus,
because it was not negligent, common-law indemnifica-
tion is inapplicable to the facts of this case. The defen-
dant counters that the plaintiff misconstrues the passive
negligence requirement, and that ‘‘passive negligence
specifically requires that a party not be negligent in any
manner, rather that liability is imposed as an operation
of law.’’ We agree with the plaintiff.
‘‘[A]n action for indemnification is one in which one
party seeks reimbursement from another party for
losses incurred in connection with the first party’s liabil-
ity to a third party.’’ Amoco Oil Co. v. Liberty Auto &
Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002).
‘‘[A] loss in the context of indemnity is the payment
that discharges a liability.’’ Id., 149. In the absence of
an express contract for indemnification or statutory
provisions authorizing actions for indemnification; see
Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535
A.2d 357 (1988); a party may nonetheless assert an
implied right to indemnification as a measure of restitu-
tion. See 41 Am. Jur. 2d 383–84, Indemnity § 1 (2015);
see also 42 C.J.S. 144–45, Indemnity § 31 (2007). The
theory of common-law indemnification is an implied
right to indemnification and is considered a means of
achieving restitution between the parties. Where a party
seeks restitution in the form of common-law indemnifi-
cation, several authorities agree that the party seeking
indemnity and the party from whom indemnification is
sought must be considered jointly and severally liable
for the loss incurred by the putative indemnitee. See
42 C.J.S., supra, § 2, p. 98 (‘‘[i]ndemnity applies only
where there is an identical duty owed by one and dis-
charged by another’’); see also 42 C.J.S., supra, § 33, p.
149 (‘‘[a] cause of action for implied indemnification
requires a showing that the plaintiff and the defendant
owed a duty to a third party, and that the plaintiff
discharged the duty which, as between the plaintiff
and the defendant, should have been discharged by the
defendant’’); 41 Am. Jur. 2d, supra, § 1, p. 383 (‘‘[i]ndem-
nity requires that a common duty be mutually owed to
a third party’’); 1 Restatement (Third), Restitution and
Unjust Enrichment, § 23, comment (d) (2011) (‘‘A claim
to indemnity or contribution arises when the claimant
has discharged all or part of a joint obligation. A claim
under this section is readily distinguished, therefore,
from the similar claim that arises when A and B owe
independent duties to a third party C; or when A, acting
with adequate justification, renders a performance to
C for which B would have been liable to C directly.
. . . The restitution claim that arises from such transac-
tions is . . . more often referred to as a claim to ‘equi-
table subrogation.’ ’’).
The consensus expressed by these authorities fully
aligns with our jurisprudence concerning claims for
common-law indemnification. The theory of common-
law indemnification was first announced by our
Supreme Court in the seminal case of Kaplan v. Merberg
Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965), as
an exception to the rule that ‘‘[o]rdinarily there is no
right of indemnity or contribution between joint [tort-
feasors].’’ Id., 412. The rationale for this exception is
that ‘‘[w]here . . . one of the defendants is in control
of the situation and his negligence alone is the direct
immediate cause of the injury and the other defendant
does not know of the fault, has no reason to anticipate
it and may reasonably rely upon the former not to com-
mit a wrong, it is only justice that the former should
bear the burden of damages due to the injury.’’ (Internal
quotation marks omitted.) Bristol v. Dickau Bus Co.,
63 Conn. App. 770, 773, 779 A.2d 152 (2001). As a result
of the decision in Kaplan, a third-party plaintiff who
previously has been found liable in tort may assert an
implied right to indemnity against another negligent
party, provided that the plaintiff satisfies the four ele-
ments of Kaplan.12 In the fifty years since Kaplan
was decided, our courts have repeatedly stated that the
party asserting a claim for common-law indemnification
must be found to be chargeable with some degree of
negligence in the underlying action as a necessary predi-
cate for sustaining such a claim. See Smith v. New
Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001) (holding
that ‘‘[t]he presence of two tortfeasors is thus required
for a viable claim of indemnification under Kaplan:
one, whose passive negligence resulted in a monetary
recovery by the plaintiff; and a second, whose active
negligence renders him liable to the first by way of
reimbursement’’); Bristol v. Dickau Bus Co., supra,775–76 (holding that ‘‘[a]s long as the plaintiffs were
chargeable with some negligence . . . and as long as
that negligence was not active or primary . . . the
plaintiffs are not precluded from recovering under com-
mon-law indemnification’’ [emphasis in original]).
After conducting a comprehensive review of our case
law, we agree with the plaintiff that the theory of com-
mon-law indemnification is inapplicable to the facts in
the present case. Our conclusion rests on the fact that
the defendant has not presented evidence demonstra-
ting that (1) the parties owed an identical duty to NPL
Investment, the insured and original plaintiff in the
underlying action; (2) the plaintiff’s payment under the
express terms of the policy discharged an obligation
for which the plaintiff and the defendant were jointly
and severally liable; or (3) the plaintiff’s payment under
the terms of the policy rendered it chargeable with
some degree of negligence in the underlying action.
See, e.g., Smith v. New Haven, supra, 258 Conn. 66.
Contrary to the defendant’s argument, the facts of this
case demonstrate that the parties owed each other dis-
tinct and separate duties, that the plaintiff’s fulfillment
of its contractual duties to NPL Investment was not the
discharge of a joint obligation, and that the plaintiff’s
compliance with its contractual obligation belies the
suggestion that it was passively negligent for the losses
that it incurred in settling the claim against NPL Invest-
ment. On the one hand, the defendant and the plaintiff
entered into a contract under which the defendant
agreed to conduct a title search with respect to the
property. Under that contract, the defendant’s liability
was narrow, in that it could be held liable only if it
either failed to perform the title search as promised or
performed it in a negligent manner. Conversely, the
plaintiff and its insured entered into a lender’s title
insurance policy, an agreement entirely distinct from
the plaintiff’s contract with the defendant. Under the
terms of the policy, the plaintiff agreed to defend,
indemnify, and hold harmless the lender in the event
that the quality of the title underlying the mortgage was
challenged. In this context, the plaintiff’s contractual
liability to its insured could be triggered by a number
of potential issues unrelated to the adequacy of the
defendant’s title search. After it received notice that
the mortgagee’s interest in the collateral was jeopard-
ized, the plaintiff took steps in fulfillment of its contrac-
tual obligations with its insured to investigate and
resolve NPL Investment’s claim, which required the
plaintiff to spend $77,500 to remove a cloud on the
property’s title and obtain a release of the adverse claim-
ants’ counterclaims.
We are not persuaded that this course of conduct
constitutes passive negligence in the underlying action;
rather, these facts suggest that the plaintiff fully com-
plied with its duties to investigate and defend claims
that fell within the terms of the policy. Although we
agree with the defendant that there are limited circum-
stances in which a party’s passive negligence arises by
operation of law, those circumstances do not apply to
the present case.13 Accordingly, the facts of the record
presented do not support the defendant’s argument that
the plaintiff and the defendant owed an identical duty
to NPL Investment, that the plaintiff’s payment under
the terms of the policy discharged a joint and several
obligation of the parties, or that the plaintiff’s compli-
ance with its contractual duties rendered it passively
negligent in the underlying case.
2
The defendant next argues that because the plaintiff’s
loss resulted from its contractual liability to a third
party, the plaintiff’s attempt to offset its liability by
recovering that amount from the defendant transforms
its claim into a claim for common-law indemnification.
Although we acknowledge that the plaintiff’s recovery
of such damages makes whole the plaintiff for its
expenses, the remedial effect of the plaintiff’s damages
does not transform this action, ipso facto, into a claim
for common-law indemnification. Indeed, the defendant
fails to account for cases in which a plaintiff has
asserted a claim of negligence against a defendant in
order to recover damages incurred as a result of the
plaintiff’s legal liability to a third party. See, e.g., Prokol-
kin v. General Motors Corp., 170 Conn. 289, 365 A.2d
1180 (1976); Mallinson v. Black, 41 Conn. App. 373, 675
A.2d 937 (1996); Commonwealth Land Title Ins. Co. v.
Close, Jensen & Miller, P.C., Superior Court, judicial
district of Hartford, Docket No. CV-06-5003046-S
(November 5, 2008) (46 Conn. L. Rptr. 602).
In Prokolkin, the plaintiff was involved in an automo-
bile accident allegedly caused by his car’s defective
limited slip differential. Prokolkin v. General Motors
Corp., supra, 170 Conn. 291. Subsequent to the accident,
but prior to filing the operative complaint, the plaintiff
‘‘paid certain sums of money to settle the claims of [his]
passengers who suffered injuries in the same accident
. . . .’’ Id., 290–91. The plaintiff claimed to have suf-
fered ‘‘$12,000 for his personal injuries and $18,375 by
way of indemnification.’’ Id., 291. Thereafter, the plain-
tiff advanced three claims against the defendant: a claim
for breach of an implied warranty, a claim of strict
products liability, and a claim of negligence. ‘‘In each
count of the amended complaint, the plaintiff sought
relief for both personal injuries and indemnification for
the sums paid by him in settlement of the suit brought
against him by the passengers injured in his car . . . .’’
Id., 293. ‘‘Upon motion of the defendant, a summary
judgment was rendered in its favor with respect to the
plaintiff’s personal injury claim on the negligence count
on the ground that it was barred by [the applicable
statute of limitations] . . . .’’ Id., 292. ‘‘[A]t trial, the
court submitted only the third count of strict products
liability to the jury but charged, without exception, that
a verdict on this count would also determine the implied
warranty count.’’ Id., 293. After the jury returned a ver-
dict for the plaintiff in the amount $18,375 for his claim
of indemnification, the court granted the defendant’s
motion to set aside the verdict. Id., 302. The trial court
then ordered ‘‘that there be a trial on the indemnifica-
tion claim of the second count of the complaint sound-
ing in negligence . . . .’’ Id., 305.
On appeal in Prokolkin, the plaintiff argued that the
trial court’s decision to set aside the verdict was errone-
ous. Id., 302. Our Supreme Court disagreed. The court
first found that, although the defendant’s motion for
summary judgment as to the plaintiff’s claim of negli-
gence was granted as it related to the plaintiff’s claim
for personal injury damages, the defendant had not
challenged, and the court had not stricken, the plaintiff’s
second claim of negligence seeking $18,375 in indemni-
fication for the sums paid to settle his passenger’s
claims. See id., 303. The court further found that the
trial court failed to submit the plaintiff’s negligence
claim seeking indemnification to the jury; it had only
submitted the plaintiff’s claim of strict liability. Id.
Because the Supreme Court found that the plaintiff’s
claim of strict liability was barred by the statute of
limitations, it found that the jury’s verdict had been
properly set aside. Id., 301–302. The court, however,
affirmed the trial court’s order ‘‘that there be a trial on
the indemnification claim of the second count of the
complaint sounding in negligence . . . .’’ Id., 305.
In Commonwealth Land Title Ins. Co., the defendant
Close, Jensen & Miller, P.C., a ‘‘well known civil engi-
neering firm that has done extensive land surveying in
Connecticut,’’ and defendant John H. Miller, certified a
survey of two adjacent properties to the plaintiffs, two
title insurance companies who, in reliance on those
surveys, issued two owners title insurance policies to
the owners of the respective properties. Common-
wealth Land Title Ins. Co. v. Close, Jensen & Miller,
P.C., supra, 46 Conn. L. Rptr. 603. The first survey,
performed by the engineering firm, certified that,
‘‘except as shown, there are no visible easements . . .
no encroachments onto adjoining premises, streets or
alleys by any of the said building structures or other
improvements, and no encroachments on to said prem-
ises by building structures or other improvements situ-
ated on adjoining premises.’’ (Internal quotation marks
omitted.) Id. The second survey, performed by Miller,
certified that ‘‘there are no encroachments or projec-
tions on or over the property or on the rights of way
or easements pertinent to the same by buildings or
improvements erected on adjacent land.’’ (Internal quo-
tation marks omitted.) Id. In actuality, however, ‘‘[t]he
cement floor slabs of [one property] poured over the
property line to [the neighboring property]. As a result,
there were very irregular projections over the property
line, in many places varying in the length from several
inches to over nine inches. . . .
‘‘When these encroachments were discovered, both
plaintiffs’ insured made claims against the plaintiffs
based on the title policies insuring against any defect,
lien, or encumbrance on the titles of the subject proper-
ties. The plaintiff Commonwealth [Land Title Insurance
Company] paid to its insured . . . $98,336.30 and [the]
plaintiff Fidelity [National Title Insurance Company]
paid to its insured . . . $85,018.15.’’ Id. The plaintiffs
then brought claims of negligence against the defen-
dants seeking ‘‘those amounts as damages against the
defendants.’’ Id. The trial court, Hon. Robert Satter,
judge trial referee, held that ‘‘the defendants clearly
owed a duty to the two plaintiffs because they certified
the surveys directly to the plaintiffs. If there was a
breach of that duty, causation occurred because plain-
tiffs relied on the survey to issue their title insurance
policy. [The] plaintiffs suffered damages by paying their
insureds for the very items plaintiffs insured against,
namely any defect in or lien or encroachment on the
title.’’ (Emphasis added; internal quotation marks omit-
ted.) Id., 604. The court further held that this was not
a subrogation action, noting that ‘‘the plaintiffs are not
standing in the shoes of their insureds with a derivative
cause of action against the defendants. The plaintiffs
have a direct action against the defendants based on
the surveys being certified to them. In such an action,
as in any negligence action, a tortfeasor is liable for all
damages proximately caused by its negligence.’’ (Inter-
nal quotation marks omitted.) Id., 605.
These cases demonstrate that where a plaintiff is
owed a direct duty of care by a defendant who breaches
such duty and renders the plaintiff legally liable to a
third party, thereby causing the plaintiff to incur losses
in discharging that liability, the plaintiff may assert a
claim of negligence against the defendant and seek to
recover those costs as compensatory damages. The
mere fact that a plaintiff’s damages arose in connection
with its contractual liability to a third party does not
relegate the plaintiff to a claim for common-law indem-
nification, especially where, as here, the plaintiff was
not passively negligent for its losses. As an aside, a
pedestrian who has been struck by a vehicle while walk-
ing in a crosswalk does not need to assert a claim of
indemnification against the driver in order to recover
those medical expenses for which the pedestrian
becomes contractually liable. Indeed, those damages
are categorized appropriately as economic damages
that may be recovered in an action for negligence. As
such, we are unpersuaded by the defendant’s argument
that the plaintiff’s liability to a third party, by itself,
transformed this negligence claim into a claim of com-
mon-law indemnification.
In light of the foregoing analysis, we conclude that
the plaintiff’s claim was not a claim for common-law
indemnification. Rather, as the trial court, Bright, J.,
correctly found, this is a claim of negligence. The defen-
dant could not and did not explain adequately why it
failed to investigate Davis’ name in the grantor-grantee
index during either its first or second title search of
the property. In fact, the defendant conceded during
oral argument to this court that its title search was
performed in a negligent manner. Had the defendant
exercised reasonable care in performing its second title
search, it would have discovered and its report would
have notified the plaintiff of Terry Road’s quitclaim deed
and its subsequent mortgage on the property. Given
the commercial nature of the plaintiff’s business as an
insurer, it was readily foreseeable to the defendant that,
should its search be performed in a negligent manner,
the plaintiff may be forced to expend money in investi-
gating and settling claims brought pursuant to an insur-
ance policy that the plaintiff had issued in reliance upon
the accuracy of the defendant’s title search reports.
Thus, the plaintiff was entitled to recover, as compensa-
tory damages, those sums reasonably spent in resolving
the underlying counterclaims, all of which would not
have been necessary had the defendant exercised rea-
sonable care in performing its second title search.
The defendant offers no legal authority for the propo-
sition that a plaintiff asserting a claim of negligence
owes the putative defendant a duty to notify, or that
its failure to provide such notice affects the applicable
standard of proof during a subsequent hearing in dam-
ages. Accordingly, we reject the defendant’s claims that
the plaintiff’s failure to provide timely notice to the
defendant altered the applicable standard of proof and
that the court, Wiese, J., applied the incorrect standard
of proof at the plaintiff’s first hearing in damages.
B
The defendant’s final argument, which accounts for
less than two pages of its brief, is that the trial court
erred in rendering summary judgment because the
plaintiff’s ‘‘entire claim rests on a [misinterpretation]
of the [McCalop] deed . . . [and that] any attempt to
change the result clearly stated requires assumptions
based on facts not in evidence. . . . At the very least,
evidence should be required before the plain meaning
of the deed is reinterpreted.’’ The defendant further
argues that ‘‘if Davis had no title to convey to Terry
Road, then [the] plaintiff had no legal obligation to pay
the underlying claim, and therefore has no claim against
the defendant . . . . Therefore, summary judgment
should not have been entered against the defendant.’’
Notably, the defendant’s brief is devoid of citation
or authority regarding our review of a trial court’s ren-
dering of summary judgment; further, the defendant
fails to articulate whether a genuine issue of material
fact exists, thereby precluding the trial court’s granting
of summary judgment, and, if so, what evidence on
record before the trial court affirmatively demonstrated
the existence of such genuine issue. In light of these
patent defects in the defendant’s brief, we conclude
that the defendant’s second argument is inadequate for
our review. ‘‘It is well settled that [w]e are not required
to review claims that are inadequately briefed. . . . We
consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. We do not reverse the judgment of a trial court
on the basis of challenges to its rulings that have not
been adequately briefed.’’ (Internal quotation marks
omitted.) Tonghini v. Tonghini, 152 Conn. App. 231,
239, 98 A.3d 93 (2014).
In any event, we note that even if this issue had been
adequately briefed, the defendant’s argument would fail
on the merits. Our conclusion is supported by the fact
that, during oral argument to this court, the defendant
conceded that its title search was, in fact, performed
in a negligent manner. Accordingly, even if this court
construed the defendant’s second argument in its broad-
est terms, our analysis would be limited to deciding
whether, in light of the language of the 2004 McCalop
deed conveying the property from McCalop to McCalop,
Terry Road had a colorable claim of title against NPL
Investment, and thus whether the defendant’s negli-
gence in failing to uncover the existence of the Terry
Road quitclaim deed was a proximate cause of the plain-
tiff’s loss. In this regard, we are reminded that the defen-
dant submitted a copy of the corrective warranty deed
issued from McCalop to Davis, dated July 6, 2006,
together with its memorandum in opposition to the
plaintiff’s motion for summary judgment. Although the
defendant argues in its brief that ‘‘any attempt to change
the result clearly stated [in the McCalop deed] requires
assumptions based on facts not in evidence,’’ the defen-
dant overlooks its own submission and the legal effect
of the July, 2006 corrective warranty deed.
‘‘A deed of confirmation may be appropriately utilized
in order to remove doubts as to the operativeness of a
prior deed to convey title to the land intended. . . .
Where the name of one of the grantees is omitted, the
omission may be cured by a subsequent deed incorpo-
rating the names of all the grantees in accordance with
the intention of the parties.’’ (Footnote omitted.) 23
Am. Jur. 2d 272–73, Deeds § 273 (2013). ‘‘A correction
deed normally relates back to the date of the original
deed, at least as between the parties to the deed. Thus,
a second deed correcting the erroneous description
contained in a former deed between the parties, as
between them, relates back and becomes effective as
of the date of the first deed.’’ (Footnote omitted.) 26A
C.J.S. 212, Deeds § 173 (2011). ‘‘[P]assage of title is
considered by a fiction of law to relate back to the date
of execution of the deed, provided no prejudice results
to intervening equities.’’14 Id., § 173, p. 212. Thus, as long
as the original deed is not void for want of the necessary
formalities, a corrective deed may be issued by the
original grantor to more accurately reflect the inten-
tions of the parties to the original deed and may be
issued to correct, among other things, the spelling or
omission of an intended grantee’s name. See, e.g.,
Arnold Industries, Inc. v. Love, 63 P.3d 721, 728 (Utah
2002); Cox v. Tanner, 229 S.C. 568, 574–76, 93 S.E.2d
905 (1956); Golden v. Hayes, 277 So. 2d 816, 817 (Fla.
App. 1973).
A line-by-line comparison of the 2004 McCalop deed
and the 2006 corrective deed reveals that both docu-
ments recite: the same operative date of conveyance,
May 19, 2004; the same description of the parcel of land
being conveyed; the same exchange of consideration;
and the same general warranties. Indeed, the only differ-
ences between the two documents are that the correc-
tive deed clarifies that the intended grantee of the 2004
conveyance was Davis, not McCalop, and that the prop-
erty was located within the town of Hartford, not the
town of East Hartford.15 Accordingly, the July, 2006
corrective deed related back and became legally effec-
tive as of the original date of conveyance, May 19, 2004.
Consequently, Davis’ later transfer of the property by
quitclaim deed to Terry Road constituted a valid trans-
fer of his interest in the property. The defendant does
not address the legal effects of the corrective deed in
its brief, and otherwise fails to demonstrate the exis-
tence of any genuine issue of material fact as to the
damages caused by its admitted negligence. Accord-
ingly, we conclude, in the alternative, that the corrective
deed renders the defendant’s final argument meritless.
II
On its cross appeal, the plaintiff claims that the trial
court misinterpreted the American rule16 and errone-
ously relied upon it to preclude an award of compensa-
tory damages to the plaintiff for the attorney’s fees and
related expenses it incurred to investigate and negotiate
a settlement of Terry Road’s and CATIC’s adverse
claims of title to the property against the plaintiff’s
insured, NPL Investment. The defendant counters that
the plaintiff’s failure to notify it of such claims and
its efforts to settle them precludes the plaintiff from
recovering such attorney’s fees and related expenses
in this matter. We agree with the plaintiff.
The following additional facts are relevant to the
resolution of this claim. After the trial court, Bright,
J., granted the plaintiff’s motion for summary judgment
as to the defendant’s liability for negligence in per-
forming the title search upon which its predecessor,
Ticor Title, relied in issuing a lender’s title insurance
policy with respect to the property, the parties sched-
uled a hearing in damages for October 2, 2014. Follow-
ing that hearing, the trial court, Wiese, J., issued a
written memorandum of decision, in which it ruled that
the plaintiff had established its entitlement to recover
$77,500 in damages to compensate it for all sums it had
paid to CATIC to settle CATIC’s and Terry Road’s claims
against NPL Investment. The trial court initially
declined, however, to rule on the plaintiff’s claim for
additional compensatory damages to compensate it for
the attorney’s fees and expenses that it had incurred to
investigate and settle those claims. Instead, the parties
agreed to address this issue at a second hearing in
damages. Prior to the second hearing in damages, the
plaintiff submitted an affidavit as to its attorney’s fees
and related expenses in the earlier litigation between
NPL Investment and CATIC and Terry Road, which
totaled $20,161.26.
Oral argument on the plaintiff’s claim for additional
compensatory damages was held on March 24, 2015.
During oral argument, the defendant argued that, absent
either a statute or a contractual provision to the con-
trary, the American rule precluded the plaintiff from
recovering any of its attorney’s fees or costs of litigation
in this case. The plaintiff responded that its earlier attor-
ney’s fees and expenses were recoverable as compensa-
tory damages because, like medical bills incurred to
cure a physical injury resulting from a defendant’s negli-
gence, they were incurred to cure a legal harm resulting
from the defendant’s negligence. The plaintiff sought to
distinguish between the legal fees and costs it incurred
during its settlement negotiations with CATIC and Terry
Road on the underlying claim against NPL Investment
and the legal fees and costs it incurred in bringing the
present action against the defendant, emphasizing that
it was seeking to recover only the former. On those
grounds, the plaintiff argued that damages it sought
here for its prior attorney’s fees and expenses were
elements of compensatory damages, which, because
they were incurred in a different legal proceeding, were
not barred by the American rule.
The trial court, Wiese, J., disagreed. In its second
memorandum of decision, the trial court held that there
was no statutory authority or contractual term that
permitted the plaintiff to recover attorney’s fees in this
action. The court further held that it was unable to find
any case law to support the plaintiff’s position that
attorney’s fees may be considered a measure of com-
pensatory damages under the facts of this case. On
those grounds, the trial court held that the American
rule barred the plaintiff’s claim for additional compen-
satory damages in this action.
On appeal, the plaintiff claims that the trial court
misinterpreted the scope of the American rule and
improperly applied it to reject the plaintiff’s claim for
compensatory damages in the amount of the attorney’s
fees and expenses it incurred to investigate and settle
the claims of Terry Road and CATIC against NPL Invest-
ment as a result of the defendant’s negligence. The
defendant argues that a party seeking common-law
indemnification is precluded from seeking attorney’s
fees and expenses where the party has failed to notify
the defendant of the underlying action.17 We agree with
the plaintiff.
We begin with our standard or review. Ordinarily,
‘‘we review the trial court’s decision to award attorney’s
fees for abuse of discretion. . . . This standard applies
to the amount of fees awarded . . . and also to the trial
court’s determination of the factual predicate justifying
the award.’’ (Internal quotation marks omitted.) ACMAT
Corp. v. Greater New York Mutual Ins. Co., 282 Conn.
576, 582, 923 A.2d 697 (2007). ‘‘When, however, a dam-
ages award is challenged on the basis of a question of
law, our review is plenary.’’ Motherway v. Geary, 82
Conn. App. 722, 726, 846 A.2d 909 (2004). The plaintiff
alleges that the trial court misinterpreted the American
rule when it denied the plaintiff’s request for attorney’s
fees. As such, the plaintiff’s claim presents a question
of law, as to which our review is plenary.
‘‘The general rule of law known as the American
rule is that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
This rule is generally followed throughout the country
. . . [and] Connecticut adheres to the American rule.’’
(Internal quotation marks omitted.) ACMAT Corp. v.
Greater New York Mutual Ins. Co., supra, 282 Conn.
582. There are, however, several recognized exceptions
to this rule. Id., 582, 592–93 (noting that claims of vexa-
tious litigation and an insurer’s bad faith refusal to
defend fall outside the purview of the American rule);
see also Mangiante v. Niemiec, 98 Conn. App. 567,
570–72, 910 A.2d 235 (2006) (recognizing certain ‘‘lim-
ited equitable exceptions to the American rule,’’ and
permitting beneficiary to recover attorney’s fees
incurred in action against trustee for self-dealing). With
regard to expenses incurred in separate legal proceed-
ings, our Supreme Court has stated that ‘‘[t]here is sub-
stantial authority . . . that attorney’s fees incurred in
other litigation against a third party, which are awarded
as an element of compensatory damages, do not fall
within the contemplation of the American [r]ule.’’ Chap-
man Lumber, Inc. v. Tager, 288 Conn. 69, 97 n.31, 952
A.2d 1 (2008); see also 1 D. Dobbs, Remedies (2d Ed.
1993) § 3.10 (3) (‘‘It is commonly stated as a rule that
when the defendant’s breach of duty to the plaintiff
involves the plaintiff in litigation with third parties, the
defendant is held liable for the costs of that litigation,
including attorney’s fees. . . . The fact that the plain-
tiff himself initiates the litigation with third persons
. . . does not preclude recovery, so long as the plaintiff
is acting reasonably to protect interests put in doubt or
jeopardy by the defendant’s breach of duty.’’ [Footnote
omitted.]). This approach fully comports with the pur-
pose of the American rule, which is to encourage parties
to litigate claims in good faith without fear that the
losing party will ultimately shoulder the legal expenses
incurred by the prevailing party in the same action. See
ACMAT Corp. v. Greater New York Mutual Ins. Co.,
supra, 592.
In this case, the plaintiff is seeking to recover only
those attorney’s fees and expenses that it incurred dur-
ing its settlement negotiations with Terry Road and
CATIC, in an action entirely distinct from the present
case. An award of such attorney’s fees and expenses
would not discourage parties from litigating their pre-
sent claims in good faith, and thus an award of this
nature would not undermine the policy of the American
rule. We further agree with the plaintiff that an award
of these damages would merely return the plaintiff to
same position it would have occupied absent the defen-
dant’s negligence and, as such, these damages are com-
pensatory in nature. See id.; see also Chapman Lumber,
Inc. v. Tager, supra, 288 Conn. 97 n.31 (rejecting defen-
dant’s argument that ‘‘the court improperly allowed the
jury to consider the costs of collection expended by
the plaintiff . . . [in a prior proceeding] as an element
of damages’’). Accordingly, we conclude, on the facts
here presented, that the trial court erred in holding
that the plaintiff was barred by the American rule from
recovering additional compensatory damages for the
fees and costs it reasonably incurred in an earlier action
to defend its insured against claims by third parties,
arising from the defendant’s negligence in conducting
a title search, that they had superior title to Flem-
ming’s property.18
The judgment is reversed only as to the award of
damages for attorney’s fees and related litigation
expenses, and the case is remanded for a further hearing
in damages on that issue; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
The plaintiff, Chicago Title, merged with its predecessor, Ticor Title,
prior to June 21, 2011.
2
At an unspecified date between July 13, 2006, and March 18, 2008, Flem-
ming’s mortgage was assigned to NPL Investment.
3
‘‘The general rule of law known as the American rule is that attorney’s
fees and ordinary expenses and burdens of litigation are not allowed to
the successful party absent a contractual or statutory exception.’’ (Internal
quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins.
Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).
4
The plaintiff has not appealed the trial court’s denial of its claim for
prejudgment interest.
5
In its motion to reargue, dated January 8, 2014, the defendant argued,
inter alia, that the trial court erroneously failed to analyze the plaintiff’s
claim as a claim for an implied contract of indemnity. See Seismograph
Service (England), Ltd. v. Bolt Associates, Inc., 8 Conn. App. 446, 453, 513
A.2d 180 (1986); see also Sendroff v. Food Mart of Connecticut, Inc., 34
Conn. Supp. 624, 626, 381 A.2d 565 (1977). Although the defendant’s reply
brief refers to this legal theory, it failed to adequately raise this issue in its
main brief. ‘‘Because the defendant failed to raise this issue in his main
brief, it is abandoned.’’ State v. Richardson, 291 Conn. 426, 431, 969 A.2d
166 (2009). Accordingly, our analysis is limited to the applicability of the
theory of common-law indemnification to the facts presented this case.
6
See footnote 8 of this opinion, noting that the McCalop deed was later
corrected to reflect, inter alia, that the property is located in Hartford.
7
Subsequent to the issuance of the policy but prior to the investigation
of the disputed claim, Ticor Title merged with and was succeeded by the
plaintiff, Chicago Title. See footnote 1 of this opinion.
8
The corrective deed, which was signed on July 6, 2006, stated, inter alia:
‘‘I, LEROY R. McCALOP of 1417 Stafford Avenue, Bristol, Connecticut 06010
for consideration of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00)
DOLLARS received to my full satisfaction of JOSEPH M. DAVIS of 15 June
Street, East Hartford, Connecticut do give, grant, bargain, sell and confirm
unto the said JOSEPH M. DAVIS . . . all that certain piece or parcel of
land . . . situated in the Town of Hartford, County of Hartford and State
of Connecticut, known as 108–110 Webster Street . . . . IN WITNESS
WHEREOF, we have hereunto set our hands and seals this 19th day of May,
2004.’’ Notably, the grantee’s name was changed from Leroy R. McCalop to
Joseph M. Davis, and further, the property’s description was changed from
‘‘Town of East Hartford, Connecticut’’ to ‘‘Town of Hartford, Connecticut.’’
The deeds were identical in every other respect.
9
‘‘Generally, a notice of lis pendens is simply a notice that, when properly
recorded, warns third parties, such as prospective purchasers, that the title
to the property is in litigation . . . . In a foreclosure of a . . . lien . . .
the lis pendens does not create an interest that is separate and distinct from
the underlying interest being foreclosed. The sole purpose of the lis pendens
in such an action is to give constructive notice to persons who may subse-
quently acquire an interest in the property, and cause them to be bound by
the proceedings.’’ (Citations omitted; internal quotation marks omitted.)
Ghent v. Meadowhaven Condominium, Inc., 77 Conn. App. 276, 284–85,
823 A.2d 355 (2003).
10
As previously stated, the record does not reveal when Chicago Title
merged with Ticor Title. See footnote 7 of this opinion. The record shows,
however, that the plaintiff, Chicago Title, was the entity that conducted the
investigation into CATIC’s and Terry Road’s counterclaims. For ease of
reading, we refer to both Ticor Title and Chicago Title as the plaintiff
henceforth.
11
Because we conclude that common-law indemnification is inapplicable
to this case, we need not address the issue of whether a party seeking
common-law indemnification is required to provide notice of the underlying
action, or whether a failure to do so requires the indemnitee to prove its
actual liability for the underlying damages.
12
Under Kaplan, ‘‘a [plaintiff] seeking indemnification must establish that:
(1) the third party against whom indemnification is sought was negligent;
(2) the third party’s active negligence, rather than the [plaintiff’s] own passive
negligence, was the direct, immediate cause of the accident and the resulting
harm; (3) the third party was in control of the situation to the exclusion of
the [plaintiff] seeking reimbursement; and (4) the [plaintiff] did not know
of the third party’s negligence, had no reason to anticipate it, and reasonably
could rely on the third party not to be negligent.’’ (Footnote omitted.) Valente
v. Securitas Security Services, USA, Inc., 152 Conn. App. 196, 204, 96 A.3d
1275 (2014).
13
There are several circumstances where an indemnitee’s passive negli-
gence may arise as a matter of law. See, e.g., Skuzinski v. Bouchard Fuels,
Inc., 240 Conn. 694, 699–700, 694 A.2d 788 (1997); Bristol v. Dickau Bus
Co., supra, 63 Conn. App. 774; Gianquitti v. Sheppard, 53 Conn. App. 72,
74–75, 78–79, 728 A.2d 1133 (1999). These circumstances, however, arise
where: (1) by virtue of a special relationship, the indemnitee is found to
have owed and breached a special duty of care to the original plaintiff; see
Skuzinski v. Bouchard Fuels, Inc., supra, 704–706 (holding that the third-
party defendant, as a business owner, owed the original plaintiff, its cus-
tomer, a duty to maintain and clean the sidewalks but that, on the basis of
the facts alleged, no reasonable juror could find that the business owner
exercised exclusive control over the public street where the customer was
struck by the third-party plaintiff’s truck); or (2) by virtue of a special
relationship, the indemnitee is held vicariously liable for the indemnitor’s
negligent conduct. See, e.g., Bristol v. Dickau Bus Co., supra, 774 (holding
that passive negligence ‘‘encompasses parties who were allegedly negligent
in their management or supervision of others and thus financially responsible
for the active negligence of the others’’); Gianquitti v. Sheppard, supra,
74–75, 78–80 (commercial lessee deemed passively negligent for injury sus-
tained by lessee’s employee on leased premises). Neither circumstance,
however, is implicated by the facts of this case. We thus find no support
for the defendant’s argument that the plaintiff’s passive negligence arose
as a matter of law.
14
Although the relevant authorities and case law qualify that corrective
deeds may not relate back when a third party’s interest is prejudiced, we
are reminded that the only third party interest implicated by the corrective
deed was held by Terry Road. It cannot be argued that they were prejudiced
by the operation of such correction, as this deed, in effect, validated and
affirmed their title pursuant to the quitclaim deed.
15
See footnote 8 of this opinion.
16
See footnote 3 of this opinion.
17
The defendant cites Gianquitti v. Sheppard, supra, 53 Conn. App. 81–82,
for the proposition that this court has considered whether a plaintiff seeking
common-law indemnification must give notice of the prior action and
whether a failure to do so disallows the recovery of attorney’s fees. Because
we conclude that common-law indemnification is inapplicable to this case;
see part I of this opinion; we conclude that the defendant’s reliance on
Gianquitti is misplaced.
18
We construe, as do the parties, the trial court’s rejection, under the
American rule, of the plaintiff’s claim for additional compensatory damages
in this action, to apply equally to expenses incurred for attorney’s fees and
for related litigation expenses. Although the court mentioned only attorney’s
fees in its second memorandum of decision, the parties have consistently
discussed both parts of the plaintiff’s claim together, both in the trial court
and before this court on appeal.