DAB Three, LLC v. LandAmerica Financial Group, Inc. ( 2018 )

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DAB THREE, LLC v. LANDAMERICA
FINANCIAL GROUP, INC., ET AL.
(AC 39834)
Sheldon, Keller and Prescott, Js.
Syllabus
The plaintiff sought to recover damages for breach of contract from the
defendant insurance brokers L Co., T Co. and E Co., and from F and
M, who were employees or agents of E Co., the entity with which the
plaintiff had entered into a contract for a certain insurance policy. The
trial court granted the defendants’ motion to dismiss the breach of
contract claim as against L Co. for lack of subject matter jurisdiction.
The plaintiff’s claim against L Co. had been extinguished when L Co.
was granted a discharge in a bankruptcy case it had filed. The trial
court thereafter rendered summary judgment as to all of the remaining
defendants except T Co. The court ruled that T Co. was the only corpo-
rate defendant that could properly be sued for breach of contract. The
court thereafter granted the motion of counsel for the defendants to
withdraw its appearance for T Co. on the basis of counsel’s representa-
tion that T Co. no longer existed because it previously had changed its
name to E Co. On appeal to this court, the plaintiff claimed that the
trial court improperly dismissed its claim against L Co., and improperly
rendered summary judgment in favor of E Co., F and M. Held:
1. The trial court properly dismissed the plaintiff’s claim against L Co.
for lack of subject matter jurisdiction; L Co. previously had filed for
bankruptcy, listed the plaintiff’s claim against it in its bankruptcy filing
and had the plaintiff’s claim against it discharged in bankruptcy after
the plaintiff failed to file a proof of claim as to that claim with the
Bankruptcy Court, and because the plaintiff did not assert any claim
for liability against any insurer of L Co., L Co. would bear the cost of
defending against the plaintiff’s claims against it, which would be in
contravention of bankruptcy law.
2. The trial court improperly rendered summary judgment in favor of E Co.;
although the plaintiff had abandoned its claim against T Co. on the basis
of counsel’s representation that T Co. no longer existed, the record
did not support the defendants’ claim that the plaintiff intentionally
relinquished and waived its claim against E Co., and given that, when
the plaintiff decided not to go to trial against T Co., a nonexistent entity,
summary judgment already had been rendered in favor of E Co., the
existing entity that it had become by change of name, the plaintiff could
not have pursued its claim against E Co., and the record was clear that
E Co. was the proper party against whom the plaintiff could maintain
a claim for breach of contract.
3. The trial court properly rendered summary judgment in favor of F and
M; because neither F nor M was a party to the contract between the
plaintiff and E Co., they could not be held liable for the alleged breach
of the contract.
Argued April 10—officially released July 10, 2018
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 Fairfield, where the
court, Arnold, J., granted the defendants’ motion to
dismiss as to the named defendant; thereafter, the court,
Wenzel, J., granted in part the motion for summary
judgment filed by the defendant Lawyers Title Corpora-
tion et al. and rendered judgment thereon, from which
the plaintiff appealed to this court; subsequently, the
court, Bellis, J., granted the motion to withdraw from
representation filed by counsel for the defendant Law-
yers Title Environmental Insurance Service Agency,
Inc., and rendered judgment dismissing the action as
against the defendant Lawyers Title Environmental
Insurance Service Agency, Inc.; thereafter, the plaintiff
filed an amended appeal with this court; subsequently,
this court dismissed the plaintiff’s appeal in part.
Reversed in part; further proceedings.
Laurence V. Parnoff, with whom, on the brief, was
Laurence V. Parnoff, Jr., for the appellant (plaintiff).
Jason A. Buchsbaum, with whom were Jonathan S.
Bowman and, on the brief, Barbara M. Schellenberg,
for the appellees (named defendant et al.).
Opinion
SHELDON, J. In this action arising from the alleged
breach of contract for the procurement of an environ-
mental insurance policy, the plaintiff, DAB Three, LLC,
appeals from the judgments rendered in favor of the
defendants LandAmerica Financial Group, Inc. (LFG),
LandAmerica Environmental Insurance Service
Agency, Inc. (LEISA), Sandra Fitzpatrick, and Debra
Moser.1 The plaintiff claims that the trial court erred
(1) in dismissing its breach of contract claim against
LFG for lack of subject matter jurisdiction, and (2) in
rendering summary judgment in favor of LEISA, Fitzpa-
trick and Moser on the plaintiff’s breach of contract
claims against them. We agree with the plaintiff that the
summary judgment rendered in favor of LEISA cannot
stand. We disagree, however, with the plaintiff’s claims
of error as to the dismissal of its claim against LFG
and the rendering of summary judgments in favor of
Fitzpatrick and Moser. Accordingly, we reverse in part
and affirm in part the judgments of the trial court.
The following procedural history is relevant to the
plaintiff’s claims on appeal. In 2006, the plaintiff com-
menced this action against the following seven defen-
dants: LFG, LEISA, Lawyers Title Corporation (LTC),
Lawyers Title Insurance Corporation (LTIC), Lawyers
Title Environmental Insurance Service Agency, Inc.
(LTEISA), Fitzpatrick, and Moser. The plaintiff claimed
that the defendants were all licensed insurance brokers
or agents with whom it contracted for the procurement
of a legal liability insurance policy that would protect
the plaintiff against risk of loss for environmental and
pollution cleanup and remediation costs that it might
incur in relation to as yet undiscovered environmental
hazards that might later be found on a parcel of real
property it intended to purchase for the purpose of
resale. After the plaintiff purchased the parcel, it discov-
ered certain previously unknown and preexisting solid
waste disposal areas on it. The plaintiff subsequently
filed a claim with the insurer for the cost of cleanup
and remediation of those areas, but its claim was denied
on the ground that it was not covered by the policy.
The plaintiff’s two count complaint alleged breach of
contract and violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq.
On March 10, 2008, the trial court, Arnold, J., ren-
dered summary judgment in favor of all seven defen-
dants with respect to the CUTPA count, which ruling
is not contested in this appeal.
On July 31, 2015, the defendants filed a joint motion
to dismiss the plaintiff’s claim of breach of contract
against LFG for lack of subject matter jurisdiction. In
support of their motion, the defendants alleged (1) that
LFG had filed for bankruptcy in 2008; (2) that LFG had
listed the plaintiff’s claim against it in this lawsuit in
its schedule of assets and liabilities; (3) that the plaintiff
had failed, despite notice of the bankruptcy, to file a
proof of claim in the bankruptcy case with respect to
its present claim; and thus (4) that the plaintiff’s present
claim against LFG was extinguished, depriving the court
of subject matter jurisdiction over it, when LFG was
granted a discharge in the bankruptcy case. On Septem-
ber 29, 2015, the trial court issued a memorandum of
decision granting the motion to dismiss with respect
to LFG.
On April 13, 2016, the remaining defendants filed a
joint motion for summary judgment as to the plaintiff’s
claim of breach of contract against them. The defen-
dants argued that they were entitled to summary judg-
ment on that claim because ‘‘(1) the individual
defendants were employees and agents acting on behalf
of a disclosed principal and cannot be held liable for
corporate contracts as a matter of law; (2) [the] plaintiff
was provided exactly what it requested by way of an
environmental insurance policy and there was no con-
tract for a specific result; and (3) if there is a contract,
there can be no privity of contract between [the] plain-
tiff and any defendant other than [LTEISA], the only
defendant that brokered the policy at issue.’’ On Octo-
ber 14, 2016, the trial court, Wenzel, J., granted the
motion for summary judgment as to all defendants
except LTEISA. The court ruled, more particularly, that,
on the basis of the evidence submitted to it, there was
no genuine issue of material fact that LTEISA was the
‘‘lone broker’’ on the policy, and thus it was the only
corporate defendant that could properly be sued for
breach of contract in relation to the policy. The court
further found, on the basis of the submitted evidence,
that the individual defendants were, at all times, ‘‘work-
ing on behalf of LTEISA to procure the policy for the
plaintiff . . . and [a]s to the corporate defendants
other than LTEISA, [the defendants] have established
that none of them ever made an agreement to provide
brokerage services to [the] plaintiff and that they were
not involved in procuring or brokering the policy.’’ On
November 22, 2016, the plaintiff filed this appeal from
the judgment of dismissal as to LFG and the summary
judgments rendered in favor of LEISA, Fitzpatrick
and Moser.
On November 8, 2016, counsel for the defendants
filed a motion to withdraw their appearance for LTEISA,
the only remaining defendant, on the ground that since
LTEISA had changed its name to LEISA in 1999,
‘‘LTEISA no longer exists.’’ On that basis, counsel repre-
sented that they ‘‘no longer ha[d] a client as to LTEISA.’’
On December 5, 2016, the court, Bellis, J., granted the
motion to withdraw. On December 7, 2016, the plaintiff
amended this appeal to include a challenge to the grant-
ing of counsel’s motion to withdraw their appearance
for LTEISA.
On December 14, 2016, the court issued an order
dismissing the plaintiff’s claim against LTEISA because
the plaintiff’s counsel had indicated on the record that
it was not going forward with trial against that nonex-
isting entity. This court thereafter dismissed the plain-
tiff’s appeal challenging the granting of the motion to
withdraw on the ground that that claim was rendered
moot when the plaintiff opted not to proceed to trial
against LTEISA and the claims against LTEISA were dis-
missed.
On appeal, the plaintiff challenges the judgment dis-
missing its claim against LFG for lack of subject matter
jurisdiction, and the summary judgments rendered in
favor of LEISA and the individual defendants. We
address each of the plaintiff’s claims in turn.
I
We begin with the plaintiff’s challenge to the judg-
ment dismissing its claim against LFG on the ground
that the court lacked subject matter jurisdiction
because that claim had been extinguished by the bank-
ruptcy discharge. ‘‘A determination regarding a trial
court’s subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Beck & Beck, LLC v. Costello,
178 Conn. App. 112, 116, 174 A.3d 227 (2017), cert.
denied, 327 Conn. 1000, 176 A.3d 555 (2018).
The plaintiff does not challenge the factual basis upon
which the trial court dismissed its claim against LFG—
that LFG filed for bankruptcy, that LFG listed the plain-
tiff’s claim against it in its bankruptcy filing, that the
plaintiff, despite notice of the bankruptcy, failed to file
a proof of claim as to its present claim with the United
States Bankruptcy Court, and thus that the plaintiff’s
claim against LFG was extinguished upon discharge by
the Bankruptcy Court. Instead, the plaintiff argues that
the trial court’s legal determination that it lacked sub-
ject matter jurisdiction by reason of LFG’s discharge
‘‘is contrary to both applicable law set out in the court’s
holding in Lightowler v. Continental Ins. Co., 255 Conn.
639, 645–46, 769 A.2d 49 (2001) . . . [due to] the fact
of the potential liability of a reinsurer and purchaser
of [LFG]’s stock.’’ The plaintiff cited Lightowler in the
trial court in opposition to the motion to dismiss its
claim against of LFG, but the trial court rejected that
claim, reasoning as follows: ‘‘[T]he plaintiff’s claim that
it should be able to recover against [LFG’s] insurance
carrier based on the holding in Lightowler is incorrect.
A significant distinction between Lightowler and the
present case is that in Lightowler, the defendant’s
insurer was also a named defendant in the lawsuit.
There is no insurer for the defendant [LFG] who has
been named as a codefendant in this lawsuit. Addition-
ally, the plaintiff cannot identify any insurer or assure
the court that such insurance coverage is even avail-
able.’’ We agree with the trial court’s analysis.
Lightowler was a legal malpractice action brought
against the plaintiff’s former attorney and that attor-
ney’s malpractice insurance carrier. The Supreme Court
held that the plaintiff could maintain her action against
both parties despite the bankruptcy of the attorney
‘‘solely for the purpose of obtaining a judgment against
[the plaintiff’s former attorney] as a necessary prerequi-
site to seeking recovery against the [codefendant insur-
ance company]—without subjecting [the plaintiff’s
former attorney] to any exposure to personal liability
under the policy.’’ Lightowler v. Continental Ins. Co.,
supra, 255 Conn. 651. In so holding, the court in
Lightowler explained: ‘‘The discharge of a debt . . .
triggers the operation of the provisions of 11 U.S.C.
§ 524 . . . which shield the debtor from any personal
liability for that debt by affording the debtor the right
to an injunction against the commencement or continu-
ation of an action . . . to collect, recover or offset any
such debt as a personal liability of the debtor . . . .
However, 11 U.S.C. § 524 (e) expressly provides that
the relief accorded the debtor under the provisions of
§ 524 does not extend to other parties. Together, the
language of these sections reveals that Congress sought
to free the debtor of his [or her] personal obligations
while ensuring that no one else reaps a similar benefit.
. . . Thus, the purpose of [§] 524 of the Bankruptcy
Code is to protect the debtor and not to shield third
parties such as insurers who may be liable on behalf
of the debtor. . . . The fresh-start policy is not
intended to provide a method by which an insurer can
escape its obligations based simply on the financial
misfortunes of the insured. . . . Furthermore . . . a
claimant is not barred from obtaining a judgment
against a discharged debtor solely for the purpose of
establishing the debtor’s liability when . . . a judg-
ment against the debtor is a prerequisite to recovering
against the debtor’s insurer. . . . It bears emphasis,
however, that [t]his exception to the permanent injunc-
tion under [§] 524 (a) is necessarily conditioned upon
the debtor’s being exempted from any exposure to per-
sonal expense or liability, resulting from the creditor’s
action, which would imperil [his or her] fresh start.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 644–47.
Here, the plaintiff did not assert any claim for liability
against any insurer of LFG. In the absence of any such
claim against a third-party insurer, LFG would bear the
cost of defending against the plaintiff’s claims against
it, which would be in contravention of § 524. We thus
agree with the trial court that the distinction between
Lightowler and this case—that LFG’s insurer, if any,
unlike the insurer in Lightowler, was not a named defen-
dant in this action—renders Lightowler inapposite to
this case. We thus conclude that the trial court properly
rejected the plaintiff’s argument in opposition to the
dismissal of the claims against LFG. Accordingly, the
court properly granted the motion to dismiss the plain-
tiff’s claim against LFG for lack of subject matter juris-
diction.
II
The plaintiff next challenges the summary judgments
rendered in favor of LEISA, Fitzpatrick and Moser.
‘‘Summary judgment shall be rendered forthwith if the
pleadings, affidavits and other proof submitted show
that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law. . . . The scope of our appellate review
depends upon the proper characterization of the rulings
made by the trial court. . . . When . . . the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Hull v. Newtown, 327 Conn. 402, 407, 174 A.3d
174 (2017).
A
The plaintiff claims, inter alia,2 that because ‘‘the
court denied summary judgment for LTEISA on the
ground [that] it was the individual defendants’
employer, the granting of summary judgment for . . .
LEISA, the actual employer of the individual defendants
since January 29, 1999,’’ cannot stand. We agree.
In their motion for summary judgment, the defen-
dants argued that ‘‘there can be no privity of contract
between [the] plaintiff and any defendant other than
[LTEISA because LTEISA was] the only defendant that
brokered the policy at issue.’’ On the basis of that factual
representation by the defendants, the trial court agreed
that only LTEISA could potentially be held liable on the
plaintiff’s claim for breach of contract. Consequently,
it rendered summary judgment in favor of the remaining
corporate defendants. After the court rendered sum-
mary judgment in favor of LEISA, however, as explained
previously, counsel for the defendants disclosed that
LTEISA had changed its name to LEISA in 1999, during
the negotiations for, and before the procurement of,
the policy. At oral argument before this court, counsel
for the defendants conceded that, in light of that name
change, LEISA is the entity with which the plaintiff had
entered into a contract to provide the insurance policy
at issue.
The defendants nevertheless persist in their claim
that the summary judgment rendered in favor of LEISA
should be upheld on the ground that the plaintiff later
waived its claims against LEISA by declining to proceed
to trial against LTEISA.3 The defendants claim that the
plaintiff thereby intentionally relinquished its breach of
contract claim against LEISA. See DeLeo v. Equale &
Cirone, LLP, 180 Conn. App. 744, 758, A.3d
(2018) (waiver is intentional relinquishment of known
right). The defendants did not raise this claim of waiver
in their motion for summary judgment, nor could they
have done so because the alleged relinquishment by
the plaintiff of its claim against LEISA did not occur
until two months after summary judgment was rendered
in LEISA’s favor. It is difficult to understand how the
summary judgment rendered in favor of LEISA could
have been proper on a ground not argued by the defen-
dants when they moved for judgment. The defendants
claim that the plaintiff had ‘‘full knowledge of the fact
that LTEISA and LEISA were one and the same, [and]
had the opportunity to proceed to judgment against
LTEISA’’ but failed to do so. The defendants argue:
‘‘Since LTEISA and LEISA are the same entity, and [the]
plaintiff was fully aware of that fact at the time it chose
not to proceed to judgment, it has waived all claims
against LEISA.’’ We disagree. The defendants’ argument
not only plainly contradicts their repeated claims that
LTEISA no longer existed after 1999, but is unsupported
by the record, which did not reveal that LTEISA and
LEISA were one and the same entity, or that the plaintiff
had such knowledge when it elected not to pursue its
claim against LTEISA. Rather, the record reveals only
that the plaintiff abandoned its claims against LTEISA
on the basis of the representation by the defendants’
counsel that that entity ‘‘no longer exists.’’ The record
does not support the defendants’ claim that the plaintiff
intentionally relinquished, and thus waived, its claim
against LEISA.
Moreover, when the plaintiff decided not to go to
trial against a nonexistent entity, summary judgment
had already been rendered in favor of the existing entity
it had become by change of name, its successor, LEISA.
Consequently, the plaintiff could not have pursued its
claim against LEISA. The record is clear that LEISA is
the proper party against whom the plaintiff may main-
tain a claim for breach of contract, and the defendants
have so conceded. We therefore reverse the summary
judgment rendered in favor of LEISA.
B
The plaintiff also challenges the summary judgments
rendered in favor of Fitzpatrick and Moser. Summary
judgment was sought, and rendered by the trial court,
in favor of the individual defendants, Fitzpatrick and
Moser, on the ground that they were not parties to the
contract between the plaintiff and LEISA, but, rather,
that they were employees or agents working on behalf
of LEISA, a disclosed principal, and thus they cannot
be held liable for corporate contracts as a matter of law.4
The following law, which was cited by the trial court,
is applicable to the plaintiff’s claim against Fitzpatrick
and Moser. ‘‘As a general matter, a principal is liable
for the acts of its agent. . . . When dealing with a third
party, however, the agent may incur personal liability
under certain circumstances. . . . [I]t is the duty of the
agent, if he would avoid personal liability on a contract
entered into by him on behalf of his principal, to dis-
close not only the fact that he is acting in a representa-
tive capacity, but also the identity of his principal, as
the person dealt with is not bound to inquire whether
or not the agent is acting as such for another. . . . If
he would avoid personal liability, the duty is on the
agent to disclose his principal and not on the party with
whom he deals to discover him.’’ (Citations omitted;
internal quotation marks omitted.) Pelletier Mechanical
Services, LLC v. G & W Management, Inc., 162 Conn.
App. 294, 305, 131 A.3d 1189, cert. denied, 320 Conn.
932, 134 A.3d 622 (2016). ‘‘Accordingly, the agent is not
liable where, acting within the scope of his authority,
he contracts with a third party for a known principal.
. . . Under the rules of agency, [u]nless otherwise
agreed, a person making or purporting to make a con-
tract with another as agent for a disclosed principal
does not become a party to the contract.’’ (Citations
omitted; internal quotation marks omitted.) Rich-Taub-
man Associates v. Commissioner of Revenue Services,
236 Conn. 613, 619, 674 A.2d 805 (1996).
The plaintiff does not dispute that Fitzpatrick and
Moser were acting on behalf of LEISA in procuring
the subject policy. The plaintiff argues, however, that
Fitzpatrick and Moser are individually liable for torts
that they committed against the plaintiff. Although the
plaintiff is correct that agents may be held liable for
torts committed by them when acting on behalf of their
principals, the plaintiff has not alleged any tort claims
against Fitzpatrick and Moser. Its sole claim against
Fitzpatrick and Moser was for breach of contract.
Because neither agent was a party to that contract, they
cannot be held liable for its alleged breach. We thus
conclude that the trial court properly rendered sum-
mary judgment in favor of Fitzpatrick and Moser.
The judgment of dismissal as to LFG and the summary
judgments in favor of Fitzpatrick and Moser are
affirmed. The summary judgment in favor of LEISA is
reversed and the case is remanded for further proceed-
ings on the plaintiff’s breach of contract claim against it.
In this opinion the other judges concurred.
1
Lawyers Title Corporation and Lawyers Title Insurance Corporation also
were named defendants in this action. The plaintiff has made no argument
that summary judgment rendered in favor of those entities was improper.
Lawyers Title Environmental Insurance Service Agency, Inc. (LTEISA),
also was a named defendant in this action, but is not a party to this appeal.
The disposition of the plaintiff’s claims against LTEISA is discussed fully
herein.
2
Because we agree with the claim addressed in part II of this opinion
and reverse the court’s judgment on the basis of that claim, we need not
address the plaintiff’s additional arguments as to why the summary judgment
rendered in favor of LEISA was improper.
3
The defendants have not claimed on appeal that the summary judgment
rendered in favor of LEISA should be upheld because the plaintiff did not
file a motion to open that judgment.
4
It would be reasonable to argue that Fitzpatrick and Moser had not
disclosed their true principal, LEISA, until after summary judgment had
been rendered in favor of LEISA and, thus, that Fitzpatrick and Moser cannot
hide behind that misidentified principal to escape individual liability for
their conduct. The plaintiff, however, has not challenged summary judgment
in their favor on the ground that they disclosed the wrong principal. More-
over, even if that argument had been advanced by the plaintiff, and we
reversed the judgment on that basis, the fact remains that they could not
be held liable for acts done on behalf of their now disclosed principal,
LEISA, which is indisputably the proper party to respond to the plaintiff’s
claim for breach of contract.