Nelson v. Tradewind Aviation, LLC

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JEFFREY NELSON v. TRADEWIND AVIATION, LLC
(AC 34625)
(AC 34838)
Keller, Mullins and Bear, Js.
Argued September 26, 2014—officially released February 24, 2015
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Doherty, J.)
Jeffrey J. Tinley, with whom were Amita S. Patel,
and, on the brief, Stephen E. Pliakas, for the appellant-
appellee (defendant).
Stephen J. Fitzgerald, with whom was Joshua R.
Goodbaum, for the appellee-appellant (plaintiff).
Opinion
BEAR, J. In this consolidated appeal, the defendant,
Tradewind Aviation, LLC, appeals from the judgment
of the trial court rendered following a jury trial in favor
of the plaintiff, Jeffrey Nelson, and the plaintiff cross
appeals from the court’s punitive damages award and
its decision to reserve the question of statutory prejudg-
ment interest for itself instead of the jury. The defendant
claims on appeal that the court improperly (1) denied
its amended motion for judgment notwithstanding the
verdict and to set aside the verdict, (2) failed to recog-
nize that an absolute privilege should attach to the
alleged defamatory statements, (3) failed to conclude
that the element of malice, required to defeat its quali-
fied privilege and to find defamation and intentional
interference with a business expectancy, could not be
proven because of the mandatory nature of its alleged
defamatory disclosures under the Pilot Records
Improvement Act of 1996, 49 U.S.C. § 44703 (h) (2012)
(PRIA), and (4) granted the plaintiff’s motion for puni-
tive damages. In his cross appeal, the plaintiff claims
that the court improperly (1) awarded punitive damages
in an amount that was less than his cost of litigation, and
(2) failed to instruct the jury on statutory prejudgment
interest. We affirm the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
review. The defendant hired the plaintiff as a second
in command pilot on April 12, 2007. The plaintiff
attended the defendant’s mandatory training program,
passed its ‘‘ground school,’’ and successfully completed
a ‘‘flight check ride’’ with the defendant’s owner in May,
2007. As a second in command pilot, the plaintiff had
a number of responsibilities, including assisting the
pilot in command, collecting, weighing, and loading the
passengers’ baggage, and checking the balance of the
total weight in the plane to ensure that its distribution
was safe for flying. Over the course of the summer of
2007, the plaintiff copiloted 137 flights from New York
and New Jersey to Martha’s Vineyard and Nantucket,
and he worked with a total of thirteen different pilots in
command. All of the passengers on those flights arrived
safely at their destinations, and none complained about
the plaintiff’s performance.
If one of the defendant’s pilots was unable to fly
safely, Kaj Wren, the defendant’s chief pilot, would have
removed him or her from flying status.1 Similarly, the
plaintiff’s immediate supervisor, assistant chief pilot
Adam Schaefer, had the authority to remove a pilot
from a flight if he observed that the pilot was not compe-
tent to fly safely. Neither Wren nor Schaefer ever
removed the plaintiff from flying status for a perfor-
mance based reason or disciplinary reason. Although
some senior pilots did complain about the plaintiff,
he was never given a written warning, disciplined, or
suspended. Additionally, the plaintiff was never offered
or sent for any additional training after he completed
ground school.
The defendant operated six planes at a time during
the 2007 summer season because of an increased
demand for its services. During the following six month
off-season, however, it operated only two planes, which
meant that the number of employed pilots was cut from
eighteen to six. At a meeting on August 28, 2007, the
defendant’s owner announced that he had more pilots
than he needed for the upcoming off-season, and that
there would be layoffs, with preference for continued
employment given to those pilots who committed to
stay for the full off-season. The plaintiff was concerned
by that announcement because he was the ‘‘least experi-
enced’’ among the recently hired pilots. The plaintiff
subsequently committed to continue his employment
for only one-half of the off-season.
Around this time, the defendant also required that
the plaintiff submit to a random drug test. Schaefer
requested the test because he believed the plaintiff was
on drugs that day, as the plaintiff had bloodshot eyes,
was fidgety, and was avoiding eye contact. The decision,
however, had nothing to do with the plaintiff’s perfor-
mance as a pilot, and the test report indicated the reason
for the test was ‘‘random selection.’’ The plaintiff’s test
came back negative. The plaintiff never violated the
defendant’s drug or alcohol policy.
On September 7, 2007, Schaefer told the plaintiff that
the defendant would be unable to continue to employ
him. Schaefer said nothing about the plaintiff’s perfor-
mance and suggested that the plaintiff might wish to
resign because it would ‘‘look better’’ to future employ-
ers. The plaintiff decided not to resign because it would
render him ineligible for unemployment benefits, and,
therefore, he was laid off. Schaefer gave the plaintiff a
packet of unemployment paperwork and told him to
go to the defendant’s human resources office to com-
plete it. The defendant’s human resources office super-
vised the completion of the paperwork, which reflected
that the plaintiff was laid off due to ‘‘Lack of Work.’’2
In December, 2007, the plaintiff interviewed with and
was offered a job by Republic Airways (Republic). As
part of his initial interview, the plaintiff completed and
signed three forms required by PRIA. The first form,
titled ‘‘Air Carrier and Other Records Request (PRIA),’’
authorized the defendant to provide Republic’s third
party representative, Phenix Group, Inc. (Phenix), with
the plaintiff’s records. The second form, titled ‘‘Authori-
zation for Release of [Department of Transportation]
Drug and Alcohol Testing Records Under PRIA and
Maintained Under Title 49 Code of Federal Regulations
(49 CFR) Part 40,’’ authorized the defendant to provide
Phenix with copies of the plaintiff’s drug and alcohol
testing records. The final form, titled ‘‘Airman Notice
and Right to Receive Copy—Air Carrier and Other
Records (PRIA),’’ required that the defendant notify the
plaintiff that his records were requested within twenty
days of the request, provide the plaintiff with a complete
copy of all of the documents provided to Phenix, and
allow the plaintiff an opportunity to submit written
comments to correct any inaccuracies in the records.
The defendant received the plaintiff’s PRIA forms on
December 24, 2007. Schaefer responded on behalf of
the defendant, and faxed to Phenix the completed
‘‘Request for PRIA Pilots Records’’ form and accompa-
nying records on January 16, 2008. In response to the
first question on the form, which asked ‘‘[w]hat is the
applicant’s current employment status with your com-
pany or affiliates,’’ Schaefer checked the box, ‘‘Termi-
nated (Involuntary).’’ The fifth question read: ‘‘Within
the past five years, has the applicant ever been removed
from flying status for any performance or professional
competency reason?’’ Schaefer responded, ‘‘Yes.’’ After
this form was faxed to Phenix, Julia Irving, a Republic
employee, called Schaefer asking for information per-
taining to the plaintiff’s termination, and Schaefer trans-
ferred the call to Wren. After completing the telephone
call with Irving, Wren instructed Schaefer to draft a
letter that was faxed directly to Irving later that day.
The letter stated: ‘‘[The plaintiff] was terminated on
September 7, 2007, after he failed to perform to the
company standard. Prior to that date he was given sev-
eral opportunities to discuss the need for improvement
as well as additional training to help him perform at
the levels we needed.’’
On January 17, 2008, the defendant faxed the plain-
tiff’s negative drug test report from the summer of 2007
directly to Irving with a cover sheet that stated: ‘‘[The
plaintiff’s] probable cause drug test result. The [defen-
dant] was concerned that poor performance may have
been caused by the use of drugs.’’
The defendant did not notify the plaintiff within
twenty days of December 24, 2007, that the PRIA
records request had been received. Additionally, despite
receiving the plaintiff’s request to receive a complete
copy of all of the documents sent to Republic, the defen-
dant sent to the plaintiff copies of only the records from
his successful training. The defendant did not send the
plaintiff a copy of its response to the ‘‘Request for PRIA
Pilots Records’’ form that it sent to Phenix, which
included the statements that he was terminated involun-
tarily and that he had been removed from flying status
for performance or professional competency reasons.
Similarly, the defendant did not send to the plaintiff a
copy of the letter it sent directly to Republic, which
stated that the plaintiff was terminated for failure to
perform to the company standard and that he had been
given opportunities to discuss the need for improve-
ment. The defendant additionally did not provide the
plaintiff with a copy of the negative drug test report and
the accompanying cover sheet that were sent directly
to Republic. According to the PRIA forms, it was the
defendant’s obligation to send the plaintiff a complete
copy of the records that it had sent to Republic. Because
the defendant failed to send copies of all of these docu-
ments to the plaintiff, the plaintiff did not know about
the additional records that the defendant had sent to
Republic. Republic revoked its job offer to the plaintiff
on January 17, 2008.
The plaintiff commenced this action against the
defendant on December 19, 2008, and the case was tried
to a jury in October, 2011. The jury found the defendant
liable for defamation with malice and for intentional
interference with a business expectancy. The jury found
that the plaintiff proved by a preponderance of the
evidence that the defendant published a defamatory
statement about the plaintiff to Republic in January,
2008, that the defamatory statement was false, and that
it was published with malice.3 The jury further found
that the plaintiff proved by a preponderance of the
evidence that he had a reasonable potential opportunity
of entering into an employment relationship with
Republic, that the defendant was aware of that, and
that the defendant intentionally interfered with the
plaintiff’s potential employment relationship with mal-
ice or out of some other improper motive. The jury
awarded the plaintiff a total of $307,332.94 in damages,
which consisted of $207,332.94 in economic damages
and $100,000 in noneconomic damages. Furthermore,
the jury found that the plaintiff was entitled to punitive
damages. The court thereafter denied the defendant’s
amended motions to set aside the verdict, for judgment
notwithstanding the verdict, and for remittitur, and
thereupon rendered judgment for the plaintiff in accor-
dance with the jury’s verdict. The court then awarded
$100,000 in punitive damages. These appeals followed.
Additional facts and procedural history will be set forth
as necessary.
I
DEFENDANT’S APPEAL
In its appeal, the defendant claims that the court
improperly (1) denied its amended motion for judgment
notwithstanding the verdict and to set aside the verdict,
(2) failed to recognize that an absolute privilege should
attach to the alleged defamatory statements, (3) failed
to conclude that the element of malice, required to
defeat its qualified privilege and to find defamation and
intentional interference with a business expectancy,
could not be proven because of the mandatory nature
of its alleged defamatory disclosures under PRIA, and
(4) granted the plaintiff’s motion for punitive damages.
We disagree.
A
The defendant first claims that the court improperly
denied its amended motion for judgment notwithstand-
ing the verdict and to set aside the verdict because
none of the alleged statements by the defendant are
defamatory as a matter of law and, therefore, cannot
support either of the plaintiff’s claims of defamation or
intentional interference with a business expectancy.
We disagree.
The following additional procedural history is rele-
vant to this claim. On October 14, 2011, the jury returned
a verdict in favor of the plaintiff on both the defamation
and tortious interference claims. On October 24, 2011,
the defendant filed a motion seeking a remittitur, and
a motion for judgment notwithstanding the verdict and
to set aside the verdict on the following grounds: (1)
the defendant did not cause damage to the plaintiff, (2)
any damage the defendant caused to the plaintiff would
have resulted from the plaintiff’s own actions, (3) the
court improperly admitted hearsay statements, (4) the
evidence was speculative, and (5) the court should take
judicial notice of the plaintiff’s prior admission that he
was discharged, and not laid off.
More than three months after the jury returned its
verdict, on January 27, 2012, the defendant moved to
amend its motion for judgment notwithstanding the
verdict and to set aside the verdict. In its amended
motion, the defendant argued for the first time in the
case: ‘‘The plaintiff’s arguments centering on the alleged
defamatory statements fail as a matter of law, because
the statement that an employee was ‘Terminated (Invol-
untary)’ or ‘terminated . . . after he failed to perform
to the company standard,’ cannot, as a matter of law,
be libelous. The plaintiff argued to the jury that the
defendant’s action in checking a box in a ‘Request for
PRIA Records’ marked ‘Terminated (Involuntary)’ was
maliciously defamatory. . . . In addition, the plaintiff
argued that the statement to Republic Airways that
‘[The plaintiff] was terminated on September 7, 2007,
after he failed to perform to the company standard’ was
also maliciously defamatory. . . . These statements
are not defamatory as a matter of law.’’ On February
6, 2012, the plaintiff objected to the defendant’s motion
to amend, but the court overruled the plaintiff’s objec-
tion and granted the motion to amend, stating that the
‘‘[c]ourt allows defendant’s motion to amend the motion
to set aside verdict and will take into consideration
plaintiff’s argument as to why such amendment is insuf-
ficient to permit the court to set aside the verdict.’’4
The court denied the defendant’s motion for remitti-
tur and amended motion for judgment notwithstanding
the verdict and to set aside the verdict on May 1, 2012,
and the defendant appealed on May 18, 2012.5 On
December 20, 2011, the plaintiff filed a motion to set
punitive damages and for statutory prejudgment inter-
est pursuant to General Statutes § 37-3a. On June 29,
2012, the court awarded the plaintiff $100,000 in puni-
tive damages, but declined to award prejudgment inter-
est. On July 17, 2012, the defendant amended its appeal
to incorporate the court’s judgment awarding punitive
damages. On July 18, 2012, the plaintiff filed a cross
appeal challenging the court’s punitive damages award
and the court’s refusal to allow the jury to decide
whether prejudgment interest should be awarded.
On November 28, 2012, the defendant filed a motion
for articulation of the court’s decision denying its
amended motion for judgment notwithstanding the ver-
dict and to set aside the verdict, and, on November 30,
2012, the plaintiff moved to consolidate his appeal and
the defendant’s appeal. On January 16, 2013, this court
dismissed, on its own motion, the defendant’s original
appeal for lack of a final judgment6 and granted the
plaintiff’s motion to consolidate. On June 11, 2013, the
court denied the defendant’s motion for articulation.
The defendant filed a motion for review of the denial
of its motion for articulation on June 21, 2013.
On July 24, 2013, this court granted review, but denied
the relief requested. In the interim, however, on July 9,
2013, the court issued an amended articulation stating:
‘‘On June 11, 2013, this court (Doherty, J.) denied the
defendant’s motion for articulation. This court hereby
amends that order as follows. Said articulation, dated
June 11, 2013, is amended for the limited purpose of
stating the fact that the court did not fail to consider
and rule upon any of the issues raised in the defendant’s
amended motion for judgment notwithstanding the ver-
dict/motion to set aside the verdict dated January 27,
2012. The court did, in fact, consider each and every
issue raised in the said amended motion and concluded
that none of the issues raised therein were sufficient
to permit the court to set aside the verdict. Having
made this amendment, the articulation of June 11, 2013,
remains otherwise unchanged.’’ On July 25, 2013, the
defendant filed a motion for review of the court’s
amended articulation. This court granted the motion
for review, but denied the relief sought on September
11, 2013.
We first set forth the legal principles and relevant
standard of review that inform our analysis. ‘‘It is well
settled that a libel is actionable per se if it charges
improper conduct or lack of skill or integrity in one’s
profession or business and is of such a nature that it
is calculated to cause injury to one in his profession
or business.’’ Proto v. Bridgeport Herald Corp., 136
Conn. 557, 566, 72 A.2d 820 (1950); see also Gaudio v.
Griffin Health Services Corp., 249 Conn. 523, 543–44,
733 A.2d 197 (1999) (No dispute that statements in letter
of termination accusing plaintiff of ‘‘display[ing] bad
judgment and [violating] established procedures regard-
ing restraint of a patient’’ are per se defamatory. [Inter-
nal quotation marks omitted.] ‘‘[T]hey [charge]
improper conduct or lack of skill or integrity in one’s
profession or business and [are] of such a nature that
[they are] calculated to cause injury to one in his profes-
sion or business.’’ [Internal quotation marks omitted.]).
‘‘Whether words are actionable per se is a question of
law for the court. . . . All of the circumstances con-
nected with the publication of defamatory charges
should be considered in ascertaining whether a publica-
tion was actionable per se. The words used, however,
must be accorded their common and ordinary meaning,
without enlargement by innuendo.’’ (Citations omitted.)
Miles v. Perry, 11 Conn. App. 584, 602–603, 529 A.2d
199 (1987).
On appeal, the defendant argues that its alleged state-
ments that the plaintiff was ‘‘Terminated (Involun-
tarily),’’ ‘‘failed to perform to the company standard,’’
and ‘‘was given several opportunities to discuss the
need for improvement as well as additional training to
help him perform at the levels we needed’’ are not
actionable defamatory statements as a matter of law.
The defendant argues that ‘‘[t]he rule has achieved virtu-
ally universal recognition that an employer’s statement
that an employee has been ‘discharged’ (or ‘fired’ or
‘terminated’ or a substantively similar statement) is not
actionable as a matter of law.’’ The defendant also
argues that the statements that the plaintiff was sub-
jected to a ‘‘probable cause drug test’’ because ‘‘the
[defendant] was concerned that poor performance may
have been caused by the use of drugs’’ are not actionable
as defamation. The defendant argues that the state-
ments were expressions of opinion regarding the plain-
tiff’s ability to meet the defendant’s subjective
performance requirements and, therefore, are not
defamatory as a matter of law.
In light of the statements made and the manner in
which the statements were made, we conclude that
the evidence reasonably supported, and that the jury
reasonably could have concluded, that the statements
‘‘[charged] improper conduct or lack of skill or integrity
in one’s profession or business and [are] of such a
nature that [they are] calculated to cause injury to one in
his profession or business.’’ (Internal quotation marks
omitted.) Gaudio v. Griffin Health Services Corp.,
supra, 249 Conn. 544.
Although the defendant on appeal relies on the opin-
ions it cited to the trial court, and a number of additional
opinions that were not brought to the attention of the
trial court,7 we note that most of those opinions are
not binding on this court or the trial court for various
reasons; see, e.g., Porter v. Orient Ins. Co., 72 Conn.
519, 529, 45 A. 7 (1900) (‘‘while a State may make laws
binding its own citizens . . . it cannot so bind citizens
of other States’’ [internal quotation marks omitted]);
McDonald v. Rowe, 43 Conn. App. 39, 43, 682 A.2d 542
(1996) (‘‘[t]rial court cases do not establish binding
precedent’’); and furthermore, we note that the facts
in those opinions are distinguishable from the facts of
this case that the jury reasonably could have found, or
they involve applications of law that differ from our
law. Unlike the cases relied upon by the defendant
which involve neutral statements, a retraction and sub-
sequent correction of the error, or which were resolved
based on law that is different than the law in Connecti-
cut; see footnote 7 of this opinion; the present case
involves intentionally false information included in sev-
eral nonprivileged statements that were published to a
potential employer and hidden from the plaintiff by
the defendant, despite his documented request for a
complete copy of the records provided by the defendant
to that potential employer. We, therefore, reject the
defendant’s claim that the alleged statements were not
actionable as defamation as a matter of law.
B
The defendant next claims that the court improperly
failed to recognize that an absolute privilege should
attach to the alleged defamatory statements. The defen-
dant argues that the statements should have been pro-
tected by an absolute privilege, because the defendant
was required to make the statements under PRIA and
because of the policy considerations underlying abso-
lute privilege—‘‘ ‘encouraging the free flow of informa-
tion’ ’’ and protecting those who are required to speak
so as not to curtail communication. We decline to reach
the merits of this claim because the defendant failed
to raise it to the trial court.
‘‘It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . [B]ecause our review is
limited to matters in the record, we [also] will not
address issues not decided by the trial court. . . . Bur-
nham v. Karl & Gelb, P.C., 252 Conn. 153, 170–71, 745
A.2d 178 (2000); see also Practice Book § 60-5 ([t]he
court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent
to the trial). The requirement that [a] claim be raised
distinctly means that it must be so stated as to bring
to the attention of the court the precise matter on which
its decision is being asked. . . . State v. Colon, 82
Conn. App. 658, 659, 847 A.2d 315, cert. denied, 269
Conn. 915, 852 A.2d 745 (2004); accord Sgueglia v. Milne
Construction Co., 212 Conn. 427, 432 n.5, 562 A.2d 505
(1989); see also McKiernan v. Caldor, Inc., 183 Conn.
164, 166, 438 A.2d 865 (1981) (issue briefly suggested
in trial court is not distinctly raised). The reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court . . . to address the claim—
would encourage trial by ambuscade, which is unfair
to both the trial court and the opposing party.’’ (Empha-
sis in original; internal quotation marks omitted.)
Remillard v. Remillard, 297 Conn. 345, 351–52, 999 A.2d
713 (2010).
A review of the record reveals that this claim was
never raised before the court or the jury. We, therefore,
decline to review it.
C
The defendant next claims that the court improperly
failed to conclude that the element of malice, required
to defeat its qualified privilege as a former employer
and to find defamation and intentional interference with
a business expectancy, could not be proven, because
the mandatory nature of its alleged defamatory disclo-
sures under PRIA negates the intent necessary to prove
malice. The defendant argues that it communicated
with Republic because of the plaintiff’s PRIA request
and with the plaintiff’s consent to do so, and that ‘‘there
is no evidence that [the defendant] did or would publish
any information about [the plaintiff’s] job performance
or the reasons for his termination to Republic absent
the PRIA mandate and [the plaintiff’s] request.’’8 We
disagree.
We begin by setting forth the relevant legal principles
and the proper standard for our review. ‘‘A defamatory
statement is defined as a communication that tends to
harm the reputation of another as to lower him in the
estimation of the community or to deter third persons
from associating or dealing with him . . . . To estab-
lish a prima facie case of defamation, the plaintiff must
demonstrate that: (1) the defendant published a defama-
tory statement; (2) the defamatory statement identified
the plaintiff to a third person; (3) the defamatory state-
ment was published to a third person; and (4) the plain-
tiff’s reputation suffered injury as a result of the
statement.’’ (Internal quotation marks omitted.)
Gambardella v. Apple Health Care, Inc., 291 Conn. 620,
627–28, 969 A.2d 736 (2009).
‘‘A defendant may shield himself from liability for
defamation by asserting the defense that the communi-
cation is protected by a qualified privilege. . . . When
considering whether a qualified privilege protects a
defendant in a defamation case, the court must resolve
two inquiries. . . . The first is whether the privilege
applies, which is a question of law over which our
review is plenary. . . . The second is whether the
applicable privilege nevertheless has been defeated
through its abuse, which is a question of fact. . . . In
a defamation case brought by an individual who is not
a public figure, the factual findings underpinning a trial
court’s decision will be disturbed only when those find-
ings are clearly erroneous, such that there is no evi-
dence in the record to support them.’’ (Citations
omitted.) Id., 628–29.
Our Supreme Court has recognized ‘‘a qualified privi-
lege for the employment references of current or former
employers that were solicited with the employee’s con-
sent.’’ (Emphasis added.) Miron v. University of New
Haven Police Dept., 284 Conn. 35, 45, 931 A.2d 847
(2007). ‘‘[T]he integrity of employment references not
only is essential to prospective employers, but also to
prospective employees, who stand to benefit from the
credibility of positive recommendations.’’ Id., 45–46. ‘‘It
also would encourage a culture of silence not to afford
a qualified privilege to employment references that are
made in good faith and without improper motive.’’9
(Internal quotation marks omitted.) Id., 46.
‘‘As a general matter, a qualified privilege in a defama-
tion case may be defeated if it can be established that
the holder of the privilege acted with malice in publish-
ing the defamatory material. . . . [Our Supreme Court]
has held that malice is not restricted to hatred, spite
or ill will against a plaintiff, but includes any improper
or unjustifiable motive. . . . Consistent with this broad
view, for more than 100 years, [our Supreme Court]
has concluded that a qualified privilege is lost upon a
showing of either actual malice, i.e., publication of a
false statement with actual knowledge of its falsity or
reckless disregard for its truth, or malice in fact, i.e.,
publication of a false statement with bad faith or
improper motive.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Gambardella v.
Apple Health Care, Inc., supra, 291 Conn. 630.
‘‘[A]ctual malice requires a showing that a statement
was made with knowledge that it was false or with
reckless disregard for its truth. . . . A negligent mis-
statement of fact will not suffice; the evidence must
demonstrate a purposeful avoidance of the truth. . . .
Further, proof that a defamatory falsehood has been
uttered with bad or corrupt motive or with an intent
to inflict harm will not be sufficient to support a finding
of actual malice . . . although such evidence may
assist in drawing an inference of knowledge or reckless
disregard of falsity.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 637–38.
Pursuant to PRIA, an air carrier looking to hire an
individual as a pilot must request and receive, inter alia,
certain records from any air carrier or person who has
employed that individual as a pilot of a civil or public
aircraft during the five year period preceding the date
of the employment application. 49 U.S.C. § 44703 (h)
(2012). The records to be provided include, but are
not limited to, records pertaining to ‘‘(I) the training,
qualifications, proficiency, or professional competence
of the individual, including comments and evaluations
made by a check airman designated in accordance with
section 121.411, 125.295, or 135.337 of [title 14, Code of
Federal Regulations]; (II) any disciplinary action taken
with respect to the individual that was not subsequently
overturned; and (III) any release from employment or
resignation, termination, or disqualification with
respect to employment.’’ 49 U.S.C. § 44703 (h) (1) (B)
(i) and (ii) (2012). The records shall be provided ‘‘not
later than [thirty] days after receiving the request.’’ 49
U.S.C. § 44703 (h) (5) (2012). An air carrier requesting
such records ‘‘shall be required to obtain written con-
sent to the release of those records from the individual
that is the subject of the records requested . . . .’’ 49
U.S.C. § 44703 (h) (2) (A) (2012). The individual who
is the subject of the records shall be provided ‘‘(A) on
or before the 20th day following the date of receipt of
the request, written notice of the request and of the
individual’s right to receive a copy of such records; and
(B) . . . a copy of such records, if requested by the
individual.’’ 49 U.S.C. § 44703 (h) (6) (A) and (B) (2012).
‘‘An air carrier that maintains or requests and receives
the records . . . shall provide the individual with a
reasonable opportunity to submit written comments to
correct any inaccuracies contained in the records
before making a final hiring decision with respect to
the individual.’’ 49 U.S.C. § 44703 (h) (9) (2012).
In the present case, the alleged defamatory state-
ments included: (1) checking the box ‘‘Terminated
(Involuntarily)’’ in response to the question ‘‘[w]hat is
the applicant’s current employment status with your
company or affiliates’’; (2) responding ‘‘Yes’’ to the ques-
tion ‘‘[w]ithin the past five years, has the applicant ever
been removed from flying status for any performance
or professional competency reason’’; (3) sending the
following letter to Republic: ‘‘[The plaintiff] was termi-
nated on September 7, 2007, after he failed to perform
to the company standard. Prior to that date he was
given several opportunities to discuss the need for
improvement as well as additional training to help him
perform at the levels we needed’’; and (4) sending the
following cover letter with the plaintiff’s negative drug
results: ‘‘[The plaintiff’s] probable cause drug test result.
The [defendant] was concerned that poor performance
may have been caused by the use of drugs.’’
A review of the evidence reveals that the jury reason-
ably could have concluded that the defendant’s defama-
tory statements were made with knowledge that they
were false and with an improper motive. The jury rea-
sonably could have found that the plaintiff was laid off
due to lack of work, that neither Wren nor Schaefer
ever removed the plaintiff from a flight for performance
or professional competency reasons, that the plaintiff
was never offered or sent for any additional training,
that the decision to send the plaintiff for a drug test
had nothing to do with the plaintiff’s performance as
a pilot, and that the drug test report indicated the reason
for the test was ‘‘random selection.’’ Additionally, the
jury reasonably could have found that the statements
were made with an improper motive in light of the
timing and manner in which the statements were made.
Despite receiving the plaintiff’s request to receive a
complete copy of all of the documents sent to Republic,
the defendant did not send the plaintiff a copy of the
completed ‘‘Request for PRIA Pilots Records’’ that
stated he was terminated involuntarily and that he had
been removed from flying status for performance or
professional competency reasons, a copy of the letter
that stated he was terminated for failure to perform to
the company standard and had been given opportunities
to discuss the need for improvement, or a copy of the
negative drug test report and cover sheet that stated
he was sent for the test because he was suspected of
using drugs.
‘‘In determining whether there was sufficient evi-
dence to show actual malice, we are mindful that liti-
gants have a constitutional right to have issues of fact
determined by the jury. . . . And so the credibility of
the witnesses and the weight to be accorded their testi-
mony is a matter for the jury to decide. Further, we
refrain from choosing among inferences as this is
another jury function.’’ (Citation omitted.) Dacey v.
Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d
125 (1976). Accordingly, we conclude that there was
sufficient evidence to support the jury’s finding that the
alleged defamatory statements were made with malice.
The defendant argues that the mandatory nature of its
alleged defamatory statements under PRIA negates the
intent necessary to prove malice. This argument, how-
ever, assumes that an employer who is required or man-
dated to make a disclosure cannot act with malice. That
assumption is simply not accurate. A qualified privilege
is provided for those disclosures made ‘‘in good faith
and without improper motive.’’ Miron v. University of
New Haven Police Dept., supra, 284 Conn. 46. There
was sufficient evidence from which the jury could find
the defendant abused and forfeited its qualified
privilege.
D
The defendant’s final claim is that the court improp-
erly awarded punitive damages because the jury’s find-
ing of actual malice is unsupported by the evidence.
We disagree.
The following additional facts are relevant. On
December 20, 2011, the plaintiff filed a motion to set
the punitive damages award in accordance with the
jury’s verdict and statutory prejudgment interest pursu-
ant to § 37-3a. On June 29, 2012, in a short order, the
court stated: ‘‘After a review of the record, trial prepara-
tion, trial proceedings including the verdict after trial
and the claims of the plaintiff for punitive damages in
the form of attorney’s fees, the court awards the plaintiff
punitive damages in the amount of $100,000. The court
declines to award statutory prejudgment interest.’’ On
July 17, 2012, the defendant amended its appeal to incor-
porate the court’s judgment awarding punitive
damages.
We first set forth the relevant standard of review
and the legal principles that inform our analysis. ‘‘In
awarding punitive damages . . . [t]he trial court has
broad discretion in determining whether damages are
appropriate. . . . Its decision will not be disturbed on
appeal absent a clear abuse of discretion.’’ (Internal
quotation marks omitted.) Gleason v. Smolinski, 149
Conn. App. 283, 313, 88 A.3d 589, cert. granted, 312
Conn. 920, 94 A.3d 1201 (2014). ‘‘[P]unitive damages
are allowable in a libel action where malice is estab-
lished . . . .’’ Triangle Sheet Metal Works, Inc. v. Sil-
ver, 154 Conn. 116, 127, 222 A.2d 220 (1966); see also
Gambardella v. Apple Health Care, Inc., supra, 291
Conn. 628 (‘‘to recover punitive damages, a plaintiff
must prove actual malice, regardless of whether the
plaintiff is a public figure’’).
In light of our determination in part I C of this opinion,
that there was sufficient evidence to support the jury’s
finding of actual malice, we conclude that the court did
not abuse its discretion in awarding punitive damages.
II
PLAINTIFF’S CROSS APPEAL
In his cross appeal, the plaintiff claims that the court
improperly (1) awarded punitive damages in an amount
that was less than his cost of litigation and (2) failed
to instruct the jury on statutory prejudgment interest.
We disagree.
The following facts and procedural history are rele-
vant to our review of these claims. On October 14, 2011,
after a seven day trial, the jury returned a verdict for
the plaintiff on both counts. The jury found that the
plaintiff suffered damages as a result of the defendant
maliciously publishing a defamatory statement about
the plaintiff and tortiously interfering with his potential
employment relationship with Republic. The jury
awarded the plaintiff a total award of $307,332.94, which
consisted of $207,332.94 in economic losses and
$100,000 in noneconomic losses. The jury also found
that the court should award punitive damages because,
as stated in the jury interrogatory, ‘‘[the plaintiff] proved
by a preponderance of the evidence that [the defendant]
acted with intentional design to injure [the plaintiff] or
with reckless disregard [as] to whether [its] conduct
would injure [the plaintiff].’’ The amount of punitive
damages was to be set by the court. Additionally, in his
request to charge, submitted prior to jury deliberations,
the plaintiff sought a jury interrogatory on prejudgment
interest under § 37-3a. The defendant’s request to
charge and proposed verdict form indicated that the
question of prejudgment interest should be decided by
the court, and not be presented to the jury. The court
agreed with the defendant, refused to charge the jury on
the issue of interest, and reserved the question for itself.
Accordingly, on December 20, 2011, the plaintiff filed
a motion to set the punitive damages award and for
statutory interest. In support of his motion, the plaintiff
submitted a memorandum of law and two affidavits,
along with exhibits consisting of invoices and receipts
for litigation costs and attorney’s fees. The plaintiff
asked the court to set punitive damages in an amount
equal to his litigation costs, which he claimed totaled
$123,390.98, and to award prejudgment interest in an
amount consistent with § 37-3a and the demands of
equity. On February 17, 2012, the defendant filed an
objection to the plaintiff’s motion, arguing for a $7666.50
reduction for an unreasonable hourly rate, a $3878.45
reduction for an unnecessary deposition, and a $5894.88
reduction for the expenses incurred by the plaintiff
having to litigate the case in Connecticut, rather than
his home state of Oregon. If the court adopted the
defendant’s arguments and deducted its suggested
amounts, it would have awarded punitive damages of
$105,951.15.
On June 29, 2012, the court issued a short order
stating: ‘‘After a review of the record, trial preparation,
trial proceedings including the verdict after trial and
the claims of the plaintiff for punitive damages in the
form of attorney’s fees, the court awards the plaintiff
punitive damages in the amount of $100,000. The court
declines to award prejudgment interest.’’ On November
30, 2012, the plaintiff filed a motion for articulation,
and on June 11, 2013, the court provided the following
articulation: ‘‘The court declines to award prejudgment
interest, which is discretionary under § 37-3a . . . .
[T]he court finds that $100,000 is a reasonable award
of punitive damages by way of attorney’s fees in this
case.’’ The plaintiff did not file a motion for review of
the court’s articulation.
A
The plaintiff first claims that the court improperly
awarded punitive damages in an amount that was less
than his cost of litigation.10 The plaintiff argues that the
court never calculated his litigation costs, but ‘‘[r]ather
the court looked at the plaintiff’s extensive evidence
of fees and costs totaling $123,390.98, compared it to
the defendant’s proposed fees and costs of $105,951.06,
and decided—in seemingly arbitrary fashion—to award
punitive damages of $100,000.’’ The plaintiff argues that
the court’s award bore no relation to the amounts sub-
mitted by either party. We disagree.
Our standard of review for an award of punitive dam-
ages is well settled. ‘‘[T]he trial court has broad discre-
tion in determining whether damages are appropriate.
. . . Its decision will not be disturbed on appeal absent
a clear abuse of discretion.’’ (Internal quotation marks
omitted.) Lyons v. Nichols, 63 Conn. App. 761, 767,
778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d
1244 (2001).
‘‘If awarded, punitive damages are limited to the costs
of litigation less taxable costs, but, within that limita-
tion, the extent to which they are awarded is in the
sole discretion of the trier. . . . Limiting punitive dam-
ages to litigation expenses, including attorney’s fees,
fulfills the salutary purpose of fully compensating a
victim for the harm inflicted on him while avoiding
the potential for injustice which may result from the
exercise of unfettered discretion by a jury.’’ (Citations
omitted; internal quotation marks omitted.) Label Sys-
tems Corp. v. Aghamohammdi, 270 Conn. 291, 335, 852
A.2d 703 (2004).
After reviewing the evidence in the record concerning
the attorney’s fees and costs incurred by the plaintiff,
we are unable to conclude that an award of $100,000
in punitive damages constituted an abuse of discretion.
‘‘The trial judge who awarded punitive damages is the
same judge who presided over the entire trial and post-
trial proceedings, and, therefore, he had a firm knowl-
edge from which to make a reasonable determination
as to the time and resources necessary . . . to pursue
[these] claim[s].’’ Id., 337. We, therefore, conclude that
the court did not abuse its discretion in awarding
$100,000 in punitive damages.
B
The plaintiff next claims that the court improperly
failed to instruct the jury on prejudgment interest pursu-
ant to § 37-3a. The plaintiff argues that the court improp-
erly invaded the province of the jury because his
entitlement to interest was a factual determination that
should have been submitted to the jury. The plaintiff
argues that the jury properly could have awarded pre-
judgment interest because it could have found that the
defendant owed the plaintiff the salary he would have
earned at Republic had the defendant not tortiously
interfered with his employment. The plaintiff argues,
therefore, that the appropriate remedy is to remand to
the court for the empanelment of a new jury to consider
an award of statutory prejudgment interest. We
disagree.
Section 37-3a (a) provides in relevant part: ‘‘[I]nterest
at the rate of ten per cent a year, and no more, may be
recovered and allowed in civil actions . . . as damages
for the detention of money after it becomes payable.’’
Section 37-3a (b) provides in relevant part: ‘‘The award-
ing of interest in such cases is discretionary.’’ (Empha-
sis added.) Whether interest should be awarded
pursuant to § 37-3a is ‘‘a jury question in those cases
that involve damages for the detention of money after it
becomes payable.’’ (Emphasis added; internal quotation
marks omitted.) Foley v. Huntington Co., 42 Conn. App.
712, 738, 682 A.2d 1026, cert. denied, 239 Conn. 931,
683 A.2d 397 (1996). Thus, the question is whether the
present case is one that involved damages for the deten-
tion of money after it became payable.
‘‘In the jury cases . . . in which prejudgment interest
was properly a jury question . . . the underlying
claims were for liquidated sums due for services or
services and materials or for reimbursement of specific
sums.’’ (Citations omitted; emphasis added.) Id., 739.
‘‘Section 37-3a provides a substantive right that applies
only to certain claims. . . . It does not allow prejudg-
ment interest on claims that are not yet payable, such
as awards for punitive damages . . . or on claims that
do not involve the wrongful detention of money, such
as personal injury claims . . . . Under § 37-3a, an
allowance of prejudgment interest turns on whether
the detention of the money is or is not wrongful under
the circumstances. . . . There are well established
propositions that § 37-3a provides for interest on money
detained after it becomes due and payable, that the
question under that statute is whether the money was
wrongfully withheld . . . . The statute, therefore,
applies to claims involving the wrongful detention of
money after it becomes due and payable.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 739–40. Therefore, ‘‘[t]o award § 37-3a
interest, two components must be present. First, the
claim to which the prejudgment interest attaches must
be a claim for a liquidated sum of money wrongfully
withheld and, second, the trier of fact must find, in its
discretion, that equitable considerations warrant the
payment of interest.’’ (Internal quotation marks omit-
ted.) Reyes v. Chetta, 143 Conn. App. 758, 770, 71 A.3d
1255 (2013).
‘‘Personal injury claims seek to make persons whole
by monetarily compensating them for a loss negligently
caused by others. Damages are typically uncertain and
the purpose of the damages is to restore the injured,
as nearly as money can, to the status they were enjoying
and would have continued to enjoy prior to the negligent
act. Such claims do not seek to regain money detained
by another.’’ Foley v. Huntington Co., supra, 42 Conn.
App. 741–42.
The damages sought in the present case for defama-
tion and tortious interference with a business expec-
tancy are similar to the damages sought in a personal
injury claim in negligence. The damages sought were
in an unliquidated sum, and were not already payable
or being wrongly withheld. See Reyes v. Chetta, supra,
143 Conn. App. 770–71 (court’s award of prejudgment
interest was improper for claim of tortious interference
with business expectancy because plaintiff did not
assert claim for liquidated sum of money that had been
wrongfully withheld from him). On the basis of our
review of the record, we conclude that § 37-3a does not
apply to these facts and that, therefore, the plaintiff
was not entitled to an award of prejudgment interest
pursuant to the statute. Accordingly, the court did not
err in reserving and deciding the question.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that, although Wren was not called as a witness at trial, portions
of his deposition were read into the record for the jury’s consideration. See
generally Practice Book § 13-31.
2
The defendant opposed the plaintiff’s application for unemployment
benefits. In its opposition, the defendant stated that: ‘‘[The plaintiff] was
let go for failure to meet the company standard. [The plaintiff] repeatedly
arrived at work late, his uniform was not neat, and he failed to fly to
commercial standards.’’ The plaintiff did not claim this statement as action-
able defamation at trial because he did receive unemployment benefits, and,
therefore, did not suffer any special damages.
3
We note that written interrogatories were provided to and answered by
the jury in this case.
4
We note that, prior to trial, the defendant did not file a motion to strike
arguing that the complaint was legally insufficient because the statements
did not constitute defamation as a matter of law. Additionally, although the
defendant filed a motion for summary judgment, motions in limine, and a
‘‘motion to dismiss’’ for failure to make out a prima facie case, this argument
was not raised in any of those motions. The argument was also not raised
as a special defense, and the defendant did not request or submit jury
interrogatories on its special defenses. Finally, the defendant did not make
the argument in its original motion for judgment notwithstanding the verdict
and to set aside the verdict.
5
Although the defendant appealed from the denial of its motion for remitti-
tur, it does not raise any arguments related to that motion on appeal. As a
result, any claims arising out of the denial of that motion are abandoned.
See Gosselin v. Gosselin, 110 Conn. App. 142, 151, 955 A.2d 60 (2008).
6
At the time the defendant’s original appeal was filed, the court had not
yet decided the amount of punitive damages and the plaintiff’s claim for
prejudgment interest. In dismissing the defendant’s original appeal, this
court relied on Balf Co. v. Spera Construction Co., 222 Conn. 211, 211–12,
608 A.2d 682 (1992) (no final judgment where claim for discretionary award
of prejudgment interest pending at trial court), and Lord v. Mansfield, 50
Conn. App. 21, 24, 28, 717 A.2d 267 (no final judgment where amount of
punitive damages not determined), cert. denied, 247 Conn. 943, 723 A.2d
321 (1998). Lord was subsequently reversed by Hylton v. Gunter, 313 Conn.
472, 479, 97 A.3d 970 (2014) (‘‘a judgment of the trial court awarding common-
law punitive damages limited to attorney’s fees is final, despite the fact that
the court has not yet determined the amount of those fees’’).
7
We note that the defendant cited three opinions to the trial court in its
amended motion for judgment notwithstanding the verdict and to set aside
the verdict—Terry v. Hubbell, 22 Conn. Supp. 248, 167 A.2d 919 (1960),
Ricci v. Crowley, 333 Mass. 26, 127 N.E.2d 652 (1955), and Elias v. Youngken,
493 A.2d 158 (R.I. 1985). The additional case citations provided by the
defendant in its appellate briefs include, Daley v. Aetna Life & Casualty
Co., 249 Conn. 766, 734 A.2d 112 (1999); Rafalko v. University of New Haven,
129 Conn. App. 44, 19 A.3d 215 (2011); Mamou v. Trendwest Resorts, Inc.,
165 Cal. App. 4th 686, 81 Cal. Rptr. 3d 406 (2008); Miles v. Banc of America
Securities, California Court of Appeal, First District, Docket No. A111086
(June 27, 2007) (2007 WL 1830791); Gould v. Maryland Sound Industries,
Inc., 31 Cal. App. 4th 1137, 37 Cal. Rptr. 2d 718 (1995); Jensen v. Hewlett-
Packard Co., 14 Cal. App. 4th 958, 18 Cal. Rptr. 2d 83 (1993); Taradash v.
Adelet/Scott-Fetzer Co., 260 Ill. App. 3d 313 (1993); Welch v. Tellabs Opera-
tions, Inc., Superior Court of Massachusetts, Middlesex County, Docket No.
00-617E (Sept. 24, 2001) (14 Mass. L. Rptr. 44); Gant v. Mahoney, Dougherty,
Mahoney, Court of Appeals of Minnesota, Docket No. C6-90-571 (July 31,
1990) (1990 WL 105956); and Larson v. Sysco Corp., 767 P.2d 557 (Utah 1989).
8
The defendant also argues that the plaintiff failed to prove malice because
where the named defendant is an organization, such as a limited liability
company, the plaintiff carries the burden of identifying the individual within
the organization that acted with malice. The plaintiff notes that the defendant
failed to preserve this argument at trial. We agree with the plaintiff. ‘‘[This
court] ordinarily do[es] not address issues that have not been properly raised
before the trial court.’’ Willow Springs Condominium Assn., Inc. v. Seventh
BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998); Practice Book
§ 60-5 (‘‘[t]he court shall not be bound to consider a claim unless it was
9
In the present case, the plaintiff signed forms authorizing the defendant
to provide his employment records to Republic. The trial on this issue,
therefore, centered on whether the defendant abused and forfeited its quali-
fied privilege by acting with malice. The plaintiff claimed that the defendant
was angered by and acted maliciously after his successful claim for unem-
ployment compensation benefits, which the defendant had discouraged him
from making. The plaintiff also claimed that some of the defendant’s state-
ments were beyond the scope of the employment records protected by the
PRIA qualified privilege.
10
The defendant argues that the record is not adequate for review of this
claim because the plaintiff never filed a motion for review of the court’s
articulation. We disagree. Practice Book § 61-10 (a) provides in relevant
part, ‘‘[i]t is the responsibility of the appellant to provide an adequate record
for review.’’ In addition to copies of both of the court’s orders pertaining
to the award of punitive damages, the plaintiff has provided a copy of all
of the documents, affidavits, and exhibits submitted to the court. These
documents provide an adequate record for the resolution of the plaintiff’s
claim as to the amount of the punitive damages award. Accordingly, we
review this claim on the merits.