Kuehl v. Koskoff

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SYLVIA N. KUEHL v. ROSALIND
J. KOSKOFF ET AL.
(AC 38128)
Lavine, Sheldon and Elgo, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney and
the defendant law firm for alleged legal malpractice in connection with
their representation of the plaintiff in certain proceedings related to an
underlying personal injury action that concerned an automobile accident
involving the plaintiff’s husband, G. In the underlying action, G and the
plaintiff signed retainer agreements with the defendants, which stated,
inter alia, that the law firm was retained to pursue claims against any
party arising out of the collision. In December, 1991, G, on his own
behalf, filed a notice of claim for workers’ compensation benefits related
to the collision, which had occurred while he was driving from his home
office to a business appointment, and his employer and the employer’s
insurance company contested his claim. The defendants thereafter com-
menced a personal injury action against the operator and owner of the
other motor vehicle involved in the collision in November, 1992, and G
died shortly thereafter. The personal injury action was eventually settled.
At the time of G’s death, the defendant attorney did not advise the
plaintiff to contact a workers’ compensation attorney, and the plaintiff
never filed a formal notice of a claim for workers’ compensation survi-
vor’s benefits within one year of G’s death pursuant to statute (§ 31-
294c [a]). The plaintiff, however, requested a hearing for survivor’s
benefits, and following a hearing, the Workers’ Compensation Commis-
sioner issued a decision determining that the plaintiff’s failure to file a
formal notice precluded her from pursuing a claim for survivor’s benefits,
which was affirmed by the Workers’ Compensation Review Board and
by our Supreme Court. Thereafter, the plaintiff commenced the present
action, claiming that the defendants committed legal malpractice by
failing to tell her that she was required to file a notice of claim for
survivor’s benefits within the one year statute of limitations. After a
trial, the jury found in favor of the plaintiff, and the defendants filed
certain posttrial motions, including a motion to set aside the verdict,
claiming, inter alia, that the plaintiff was required to present expert
testimony in a legal malpractice action showing that the defendants’
breach of the standard of care proximately caused the plaintiff’s alleged
damages, which the plaintiff did not do. The trial court denied the
defendants’ posttrial motions, and the defendants appealed to this court.
Held that the trial court improperly denied the defendants’ motion to
set aside the verdict; although the plaintiff presented the testimony of
an attorney expert who practiced personal injury litigation and workers’
compensation law, the plaintiff failed to provide expert testimony as to
causation, as her expert did not testify that the failure of the defendant
attorney to file a workers’ compensation claim on behalf of the plaintiff
was a proximate cause of the plaintiff’s damages or that the plaintiff
would have prevailed on the issues related to the workers’ compensation
claim, namely, whether the collision occurred during the course of G’s
employment and whether the collision was a proximate cause of his
death, and the trial court improperly concluded that the jury could
discern whether the collision occurred during the course of G’s employ-
ment and that his death was the result of the collision, as the court
did not address the statutory and regulatory rules related to workers’
compensation claims, which were complex and not within the ken of
the jury, and for which expert testimony was required to enable the
jury to determine the causal relationship between any legal malpractice
and the plaintiff’s alleged damages.
Argued January 5—officially released June 12, 2018
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of Stamford; thereafter, the
court, Povodator, J., granted the motion to substitute
Clifford A. Mollo, executor of the estate of the plaintiff,
as the party plaintiff; subsequently, the case was tried
to the jury; verdict for the substitute plaintiff; thereafter,
the court denied the defendants’ motion for a directed
verdict, motion for judgment notwithstanding the ver-
dict, and motion to set aside the verdict, and rendered
judgment in accordance with the verdict, from which
the defendants appealed and the substitute plaintiff
cross-appealed to this court. Reversed; judgment
directed.
James J. Healy, with whom, on the brief, was Mat-
thew W. Naparty, for the appellants/cross-appellees
(defendants).
Ridgely Whitmore Brown, with whom were David
M. S. Shaiken and Benjamin E. Gershberg, and, on the
brief, Mark S. Shipman and Austin Sherwood Brown,
legal intern, for the appellee/cross-appellant (substi-
tute plaintiff).
Opinion
LAVINE, J. Except in obvious situations, expert testi-
mony generally is required to establish the element of
causation in a legal malpractice case. See Bozelko v.
Papastavros, 323 Conn. 275, 284–85, 147 A.3d 1023(2016). ‘‘Because a determination of what result should
have occurred if the attorney had not been negligent
usually is beyond the field of ordinary knowledge and
experience possessed by a juror, expert testimony gen-
erally will be necessary to provide the essential nexus
between the attorney’s [alleged] error and the plaintiff’s
damages.’’ Id., 285.
In this legal malpractice action, the defendants, Rosa-
lind J. Koskoff and the law firm of Koskoff, Koskoff &
Bieder, P.C.,1 appeal from the judgment of the trial court
rendered, after a jury trial, in favor of the plaintiff, Sylvia
N. Kuehl.2 To summarize, this protracted litigation con-
cerns the plaintiff’s contention that the defendants
breached the duty of care they owed her during their
representation of her in an underlying personal injury
action involving her late husband, Guenther Kuehl
(decedent), when the defendants failed to file a claim
for survivor’s benefits under our Workers’ Compensa-
tion Act (act), General Statutes § 31-275 et seq., within
a year of his death.3 At trial, the defendants claimed
that the plaintiff failed to prove the proximate cause
element of a negligence cause of action because she
failed to present expert testimony that, more likely than
not, she would have been awarded survivor’s benefits
under the act if the defendants had submitted her claim.
On appeal, the defendants claim that the trial court
improperly denied their motion for a directed verdict,
motion for judgment notwithstanding the verdict, and
motion to set aside the verdict.4 We reverse the judg-
ment of the trial court.5
The following facts and procedural history are rele-
vant to the issue on appeal. The events giving rise to
this case began on the morning of June 26, 1991, when
a squirrel darted across a street in Greenwich causing
a motorist to swerve and collide with the motor vehicle
operated by the decedent.6 Later in the day, the dece-
dent went to an emergency room and was diagnosed
with a cervical strain. At the time, the decedent was
the president and owner of Z-Loda Systems Engi-
neering, Inc. (Z-Loda). Kuehl v. Z-Loda Systems Engi-
neering, Inc., 265 Conn. 525, 527, 829 A.2d 818 (2003).
The decedent believed that he had been injured in the
course of his employment because, at the time of the
collision, he was driving from his Greenwich home,
where he had an office in addition to his office at Z-
Loda, to a business appointment in Tarrytown, New
York. On August 3, 1991, the decedent suffered an aortic
dissection that was surgically repaired. The plaintiff
and the decedent believed that his aortic dissection
was a result of the injuries the decedent suffered in
the collision.
On September 24, 1991, the decedent and the plaintiff
each signed a retainer agreement with the firm for their
respective claims arising out of the collision. The plain-
tiff’s retainer agreement stated that the firm was
retained ‘‘to pursue and if warranted to prosecute a
claim or claims against any party or parties arising out
of the following: Accident to my husband on 6/26/91 in
Greenwich, CT.’’7 Koskoff was the firm’s attorney who
assumed responsibility for the case.
On December 16, 1991, the decedent, on his own
behalf, filed a notice of claim for workers’ compensa-
tion benefits (compensation claim). Kuehl v. Z-Loda
Systems Engineering, Inc., supra, 265 Conn. 528. On
January 21, 1992, Z-Loda and Travelers Insurance Com-
pany (Travelers), the workers’ compensation insurance
carrier for Z-Loda, filed a notice contesting the dece-
dent’s claim on two grounds: that the collision was not
work related and that even if it were, the decedent’s
injuries were unrelated to the collision.8 Id., 528–29. On
November 1, 1992, Koskoff, on behalf of the plaintiff
and the decedent, commenced a personal injury action
against the operator and owner of the motor vehicle
(tortfeasors) involved in the collision. Id., 529. The dece-
dent alleged claims to recover damages for his personal
injuries and losses; the plaintiff alleged a claim to
recover damages for loss of consortium.
On November 14, 1992, the decedent died, and the
plaintiff, as executrix of his estate, was substituted for
him as the plaintiff in the personal injury action. Id.
The plaintiff amended the complaint to allege that the
decedent’s death was a result of his aortic aneurysm,
which in turn was a consequence of the injuries he
sustained in the collision. Id. The plaintiff sent a copy
of the amended complaint to Z-Loda in May, 1993, and
Z-Loda moved to intervene in the personal injury action
on the ground that it might become obligated to pay
large sums to the decedent’s estate ‘‘and/or to the plain-
tiff.’’ (Internal quotation marks omitted.) Id. The plain-
tiff eventually settled the personal injury action and
signed a release as to Travelers.9 At the time of the
decedent’s death, Koskoff did not advise the plaintiff
to contact a workers’ compensation attorney because
she knew that the decedent had met with an attorney
specializing in workers’ compensation law,10 as pre-
viously recommended by Richard Bieder of the firm.
‘‘Although the decedent previously had filed a notice
of claim for compensation in connection with his claim
for workers’ compensation benefits, the plaintiff did
not file a separate notice of claim in connection with
her claim for survivor’s benefits.’’ Id., 530 n.8.
On July 22, 1998, however, the plaintiff requested a
hearing for survivor’s benefits pursuant to § 31-306. Id.,
530. On August 31, 1998, the Workers’ Compensation
Commissioner (commissioner) held a hearing on the
plaintiff’s claim to determine whether she should be
precluded from pursuing a claim for survivor’s benefits
due to the fact that she had not filed a formal notice
of her claim within the statute of limitations pursuant
to § 31-294c (a); id.; i.e., one year from the date of
the decedent’s death. Although the plaintiff presented
several arguments as to why her failure to file notice
should not be fatal to her claim, the commissioner con-
cluded that her failure to file a formal notice precluded
her from pursuing a claim for survivor’s benefits. Id.,
531–32. The plaintiff took two appeals, but the commis-
sioner’s decision was affirmed by the Workers’ Compen-
sation Review Board; id., 532; and by our Supreme
Court. Id., 539. Our Supreme Court concluded that the
plaintiff’s failure to file a formal notice of claim pursuant
to § 31-294c (a) deprived the commissioner of subject
matter jurisdiction. See id., 534–35.
Thereafter, on March 16, 1999, the plaintiff com-
menced the present action against the defendants, alleg-
ing that they had failed to tell her that she was required
to file a notice of claim for survivor’s benefits within
one year of the decedent’s death to confer jurisdiction
on the commissioner. See St. Paul Travelers Cos. v.
Kuehl, 299 Conn. 800, 806, 12 A.3d 852 (2011). The
plaintiff alleged two counts: negligence or legal mal-
practice and breach of contract. Following the plain-
tiff’s death, Clifford A. Mollo was appointed executor
of her estate and substituted as the party plaintiff in
the present action.11
The operative complaint was filed on May 1, 2014,
during trial. It alleged in relevant part that the defendant
was an attorney admitted to practice law in Connecticut
and was employed by the firm. The plaintiff alleged that
the decedent sustained personal injuries in the collision
and that the tortfeasors had more than $3 million of
insurance coverage. In addition, prior to the collision,
Z-Loda had purchased workers’ compensation coverage
from Travelers that was available to compensate the
decedent and the plaintiff for their losses. The plaintiff
further alleged that she had retained Koskoff to prose-
cute ‘‘a claim or claims against any party or parties
arising out of [the decedent’s]’’ collision of June 26,
1991, and that the defendants accepted the employment
and provided ‘‘legal representation to the plaintiff,’’
which was continuous from October 19, 1991, until
October 1, 1998.
The operative complaint also alleged that the defen-
dants commenced a personal injury action against the
tortfeasors on behalf of the decedent and the plaintiff
on November 1, 1992. The plaintiff as executrix of the
decedent’s estate was substituted as the plaintiff after
the decedent died. The plaintiff alleged that ‘‘Koskoff,
in the exercise of the skills ordinarily expected of attor-
neys in the community practicing law under the same
or similar circumstances, knew or reasonably should
have known’’ that under the act, the plaintiff was enti-
tled to file a claim for survivor’s benefits; that the time
for filing a written notice of claim for survivor’s benefits
was one year from the date of the decedent’s death;
and that the failure to file a written claim for survivor’s
benefits on or before November 14, 1993, would bar
the plaintiff from receiving survivor’s benefits under
the act. The plaintiff also alleged that the value of her
claim for survivor’s benefits was in excess of $1 million.
The plaintiff alleged that Koskoff was negligent in
multiple ways but principally in that she failed to file
a written notice of claim for survivor’s benefits within
one year of the decedent’s death, failed to pursue bene-
fits for the plaintiff when she knew or reasonably should
have known that the plaintiff was entitled to them, and
failed to advise the plaintiff that she had to file a notice
of claim. In addition, she alleged that the defendants’
negligent acts constituted legal malpractice that was a
substantial factor in proximately causing her damages.
On May 5, 2014, the defendants filed an answer and
special defense to the amended complaint, in which
they denied its material allegations and pleaded the
special defense of comparative negligence on the basis
of the plaintiff’s alleged negligence in failing to consult
with other counsel for the purposes of filing for benefits
under the act as she had been advised to do, and failure
to retain counsel for that purpose.
The parties tried the case to a jury in April and May,
2014. The evidence relevant to the determinative issue
in this appeal concerns the expert testimony the plain-
tiff presented as to the prevailing standard in the legal
community, whether Koskoff had breached that stan-
dard of care when representing the plaintiff, and
whether the alleged breach proximately caused the
plaintiff’s alleged losses and damages.12 The plaintiff’s
expert witness was Thomas Willcutts, an attorney who
practices in the areas of personal injury and workers’
compensation law. The defendants contend that he did
not offer expert testimony as to the prevailing standard
of professional care, but instead testified only about his
personal preferences, and that he did not offer expert
testimony that the defendants’ negligence proximately
caused the plaintiff’s alleged losses and damages.
Willcutts testified in part that Koskoff ‘‘does not know
workers’ comp. She knows some of it, but she would not
consider herself someone who would handle a workers’
compensation matter, which is okay. You can handle
the personal injury side of the case and not the workers’
compensation case. So that in itself I don’t see as a
problem. So I am judging her not as a workers’ compen-
sation lawyer and what a workers’ compensation [law-
yer] should know and should do, but my opinion is
based on her being a personal injury lawyer who takes
the position that she doesn’t know workers’ comp., but
is handling a case that involves workers’ comp. . . .
Well, lawyers can make mistakes and they don’t neces-
sarily cause any harm. Part of my opinion is based upon
the information in terms of what I expect would occur
in this case had it been handled the way I believe it
should have been handled.’’ Although Willcutts testified
at length about Koskoff’s alleged mistakes in handling
the plaintiff’s claim, he did not testify that her alleged
breach of the standard of care proximately caused the
plaintiff’s alleged losses and damages, that is that the
plaintiff would have received survivor’s benefits if
Koskoff had submitted a claim for such benefits or if
she had referred the matter to a lawyer who specializes
in workers’ compensation claims.
At the conclusion of the plaintiff’s case-in-chief, the
defendants moved for a directed verdict on the ground
that the plaintiff had failed to produce expert testimony
to establish that she likely would have prevailed on her
claim for survivor’s benefits because the complexities
of workers’ compensation law are not common knowl-
edge to the jurors.13 The defendants argued that because
the plaintiff claimed that her damages flowed from the
loss of her right to pursue survivor’s benefits under the
act, she needed to present a legal expert to testify that
she more than likely would have been awarded survi-
vor’s benefits if she had submitted a claim. Such an
action is proved by presenting what is known as a case-
within-a-case. See, e.g., Grimm v. Fox, 303 Conn. 322,
352, 33 A.3d 205 (2012) (Palmer, J., concurring). The
plaintiff faced a difficult challenge in proving causation,
in that Z-Loda and Travelers had contested the claim
that the self-represented decedent filed on the grounds
that the injuries he sustained in the collision did not
arise in the course of his employment and that his aortic
dissection and ensuing death were not proximately
caused by the collision. The court denied the defen-
dants’ motion for a directed verdict.
The case and certain interrogatories were submitted
to the jury on May 13, 2014. The jury found, pursuant
to its answers to interrogatories, that the defendants
departed from the standard of care that they owed
the plaintiff and the departure proximately caused the
financial harm that the plaintiff sustained. The jury also
found that the defendants had proved that the plaintiff’s
negligence in failing to follow their advice to consult
with an experienced workers’ compensation attorney
was a proximate cause of the financial harm that she
sustained. The jury apportioned 85 percent of the negli-
gence to the defendants and 15 percent of it to the
plaintiff. The jury found that the plaintiff’s damages
were $1.1 million, but reduced that sum by 15 percent
to $935,000, due to the plaintiff’s comparative negli-
gence, in awarding the plaintiff damages on her legal
malpractice claim.14
Thereafter the defendants moved for a judgment not-
withstanding the verdict and to set aside the verdict.
On July 21, 2014, they filed a memorandum of law in
support of their postjudgment motions. In their memo-
randum of law, the defendants cited numerous cases
for the proposition that a plaintiff must present expert
testimony in a legal malpractice action that the defen-
dant’s breach of the standard of care proximately
caused the plaintiff’s alleged losses and damages. See
Byrne v. Grasso, 118 Conn. App. 444, 451–52, 985 A.2d
1064 (2009) (to prove damages for alleged malpractice
in challenging claim for attorney’s fees, plaintiff had to
present expert testimony that, without malpractice, fee
challenge could have been successful), cert. denied, 294
Conn. 934, 987 A.2d 1028 (2010); Dixon v. Bromson &
Reiner, 95 Conn. App. 294, 299–300, 898 A.2d 193 (2006)
(in legal malpractice case expert witness is necessary
to opine that defendant’s alleged breach of standard
of care proximately caused plaintiff’s alleged loss or
damages; judge not expert in every area of law);
DiStefano v. Milardo, 82 Conn. App. 838, 843, 847 A.2d
1034 (2004) (directed verdict proper if plaintiff fails to
present expert testimony on issue of proximate causa-
tion in legal malpractice actions), aff’d, 276 Conn. 416,
886 A.2d 415 (2005); Vona v. Lerner, 72 Conn. App. 179,
188–92, 804 A.2d 1018 (2002) (expert testimony serves
to assist lay members of jury and presiding judge and
to prevail on negligence claim, plaintiff must establish
that defendant’s conduct proximately caused injuries),
cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).15
On June 18, 2015, the court issued a lengthy memoran-
dum of decision on the defendants’ postverdict motions,
as well as the postverdict motions filed by the plaintiff.16
We need address only that portion of the court’s deci-
sion with respect to the defendants’ claim that the plain-
tiff was required to provide expert testimony to prove
that the defendants’ alleged breach of the standard of
care proximately caused her alleged damages.
The court outlined the legal complexities of the plain-
tiff’s case. ‘‘[I]nstead of the usual trial within a trial
format, this case had a trial within a trial within a trial
quality. Long before most of the issues in this case had
developed, [the decedent] had died. The real workers’
compensation issue became not so much the claim that
he might have been able to pursue, but rather the [survi-
vor’s] benefits which [the plaintiff] might have received,
had workers’ compensation issues been pursued prop-
erly/diligently. That however entails its own trial within
a trial element—in order for [the plaintiff] to have had
a right to survivor’s benefits, [there] first would have
to be proof that the injury to [the decedent] was a
compensable claim under workers’ compensation. In
other words, the viability of the survivor’s benefit claim
was contingent upon the viability of the underlying
claim of [the decedent].’’
The court summarized the issue presented by the
defendants’ postverdict motions as follows: ‘‘[The]
defendants claim that there was a need for expert testi-
mony as to the likely outcome, had the initial claim by
[the decedent], and the later [survivor’s] claim of [the
plaintiff], been properly and timely submitted to the
administrative process of workers’ compensation—
what would a commissioner have done? The court does
not believe that [the] defendants have submitted ade-
quate authority for such a requirement; they have not
adequately refuted the suggestion . . . of [the] plaintiff
that that would be asking for an opinion as to an ulti-
mate issue for the jury to decide.’’ The court concluded
that the jury reasonably could have found that the defen-
dants had breached a duty to take care of all legal
matters arising from the collision. It also concluded
that there was adequate, if not overwhelming, evidence
that the requirements to establish a valid workers’ com-
pensation claim by the decedent existed and that it
would have been successful if timely filed, which in turn
would have led to the awarding of survivor’s benefits
to the plaintiff if her claim had been submitted.
In other words, the court was of the opinion that the
plaintiff had presented sufficient evidence to permit the
jury to infer that there was a causal link between the
collision and the decedent’s injuries. It found that the
medical evidence, if considered as presenting a chain of
interrelated elements, established a causal connection
between the collision and the condition that eventually
led to the decedent’s death. It found that when they
prosecuted the personal injury action, the defendants
argued that there was evidence of ‘‘medical linkage’’
between the collision and the decedent’s aortic dissec-
tion. The court therefore concluded that there was suffi-
cient evidence for the jury to find that the decedent’s
injury was compensable under the act. In summary,
the court believed that ‘‘there was adequate evidence
presented that would allow a jury to infer that there
was a causative link between the injury-causing [colli-
sion] and the eventual death of [the decedent]. The
appropriate standards were presented through an
expert [Willcutts]. There was evidence and discussion
of the evidence relating to the employment nexus,
including records created by [the] defendants. Again,
the court must return to the refrain that even weak
evidence, and evidence that must be stitched together,
can be sufficient to support a jury verdict.’’ For these
and other reasons, the court denied the defendants’
postverdict motions and rendered judgment for the
plaintiff. The defendants appealed.
The essence of the defendants’ claims on appeal con-
cerns legal malpractice. ‘‘Malpractice is commonly
defined as the failure of one rendering professional
services to exercise that degree of skill and learning
commonly applied under all the circumstances in the
community by the average prudent reputable member
of the profession with the result of injury, loss, or dam-
age to the recipient of those services . . . .’’ (Internal
quotation marks omitted.) Updike, Kelly & Spellacy,
P.C. v. Beckett, 269 Conn. 613, 649, 850 A.2d 145 (2004).
Generally, a plaintiff who alleges legal malpractice must
prove all of the following elements: ‘‘(1) the existence
of an attorney-client relationship; (2) the attorney’s
wrongful act or omission; (3) causation; and (4) dam-
ages.’’ (Emphasis added; internal quotation marks omit-
ted.) Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205(2012). There is no dispute that an attorney-client rela-
tionship existed between the parties. The case turns on
the causation element of legal malpractice.
‘‘The essential element of causation has two compo-
nents. The first component, causation in fact, requires
us to determine whether the injury would have occurred
but for the defendant’s conduct. . . . The second com-
ponent, proximate causation, requires us to determine
whether the defendant’s conduct is a substantial factor
in bringing about the plaintiff’s injuries. . . . That is,
there must be an unbroken sequence of events that tied
[the plaintiff’s] injuries to the [defendants’ conduct].
. . . The causal connection must be based [on] more
than conjecture and surmise. . . . [N]o matter how
negligent a party may have been, if his negligent act
bears no [demonstrable] relation to the injury, it is not
actionable . . . .
‘‘The existence of the proximate cause of an injury
is determined by looking from the injury to the negligent
act complained of for the necessary causal connection.
. . . In legal malpractice actions arising from prior
litigation, the plaintiff typically proves that the . . .
attorney’s professional negligence caused injury to the
plaintiff by presenting evidence of what would have
happened in the underlying action had the [attorney]
not been negligent. This traditional method of pre-
senting the merits of the underlying action is often
called the case-within-a-case. . . . More specifically,
the plaintiff must prove that, in the absence of the
alleged breach of duty by her attorney, the plaintiff
would have prevailed [in] the underlying cause of action
and would have been entitled to judgment. . . . To
meet this burden, the plaintiff must produce evidence
explaining the legal significance of the attorney’s failure
and the impact this had on the underlying action.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Bozelko v. Papstavros, supra, 323 Conn. 283–84.
‘‘Generally, expert testimony is admissible if (1) the
witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues.’’ (Internal quotation marks omitted.)
Card v. State, 57 Conn. App. 134, 138, 747 A.2d 32 (2000).
Expert testimony is permitted in many instances, but
it is required ‘‘only [if] the question involved goes
beyond the field of the ordinary knowledge and experi-
ence of a [trier of fact].’’ Franchey v. Hannes, 155 Conn.
663, 666, 237 A.2d 364 (1967).
‘‘[Our Supreme Court] has explained that, as a general
matter, expert testimony is necessary in legal malprac-
tice cases in order to establish the standard of care,
against which the attorney’s conduct should be evalu-
ated by the jury.’’ Bozelko v. Papastavros, supra, 323
Conn. 282–84. Expert testimony is required because to
know the outcome if an attorney had not been negligent
is beyond the ken of the ordinary trier of fact. Id., 285.
Expert testimony provides the required nexus between
the attorney’s negligence and the plaintiff’s damages.
Id. ‘‘In complex legal malpractice matters, expert testi-
mony is necessary to keep the jury from speculating
on how the client’s loss or injury is directly linked to
that which he claims was the breach of duty by the
attorney.’’ (Emphasis omitted.) Id., 289.
In the present case, the plaintiff presented the testi-
mony of Willcutts, an attorney who practices personal
injury litigation and workers’ compensation law. We
carefully have reviewed his testimony as to how he
handles workers’ compensation cases. He testified that
litigating a personal injury case is different from litigat-
ing a workers’ compensation case. He also testified that
Koskoff was a personal injury lawyer, not a workers’
compensation lawyer. He identified the decedent’s
report of the collision that should have put Koskoff on
notice of a compensation claim and opined that she
should have filed a claim. Nowhere in his testimony,
however, did he testify that her failure to do so was a
proximate cause of the plaintiff’s injuries and loss. At
no time did he testify that the plaintiff would have
prevailed on the issues related to the case-within-a-
case, namely whether the collision occurred during the
course of the decedent’s employment and the collision
was a proximate cause of his death, in the face of Z-
Loda and Travelers filing notice that they intended to
contest the decedent’s claim for benefits. Z-Loda and
Travelers contested the decedent’s claim on the
grounds that the collision did not occur in the course
of his employment and that his injuries and death were
not proximately caused by the collision.17 As to whether
the collision occurred during the course of the dece-
dent’s employment, Willcutts mentioned the coming
and going rule that applies to an employee’s commute
to his place of employment or start of the work day, but
he did not opine that had Koskoff filed a compensation
claim the plaintiff more likely than not would have
received survivor’s benefits. This omission was espe-
cially critical in light of the fact that Z-Loda and Travel-
ers were contesting the decedent’s claim for workers’
compensation benefits.
In denying the defendants’ motion for judgment not-
withstanding the verdict, the court found that ‘‘[the]
plaintiff produced at least the minimum evidence
needed to present the case to the jury, which in turn
was at least the minimum evidence needed to support
a possible verdict in favor of [the] plaintiff.’’ The court
also found that ‘‘the evidence was not overwhelming
and may have had to be pieced or stitched together,
but that is not an issue to be addressed by way of
motion for judgment notwithstanding the verdict or
motion to set aside the verdict.’’ It concluded that the
jury could discern whether the collision occurred dur-
ing the course of the decedent’s employment and that
his death was the result of the collision. In coming
to that conclusion, the court found applicable the law
related to proximate cause in a personal injury action.
It did not, however, address the statutory and regulatory
rules related to workers’ compensation claims, in par-
ticular the coming and going rule that controls whether
an injury that was sustained during an employee’s com-
mute arose in the course of employment.18 It can hardly
be said that the statutes and regulations regarding work-
ers’ compensation are within the ken of the jury. It is
for that reason that expert testimony is needed to prove
causation in a legal malpractice action.
‘‘It is well settled that, because the purpose of the
act is to compensate employees for injuries without
fault by imposing a form of strict liability on employers,
to recover for an injury under the act a plaintiff must
prove that the injury is causally connected to the
employment. To establish a causal connection, a plain-
tiff must demonstrate that the claimed injury (1) arose
out of the employment, and (2) in the course of the
employment. . . .
‘‘The determination of whether an injury arose out
of and in the course of employment is a question of
fact for the commissioner.’’ (Citation omitted; internal
quotation marks omitted.) Labadie v. Norwalk Rehabil-
itation Services, Inc., 84 Conn. App. 220, 225–26, 853
A.2d 597 (2004), aff’d, 274 Conn. 219, 875 A.2d 485(2005).
‘‘The purpose of the [workers’] compensation statute
is to compensate the worker for injuries arising out of
and in the course of employment, without regard to
fault, by imposing a form of strict liability on the
employer. . . . A commissioner may exercise jurisdic-
tion to hear a claim only under the precise circum-
stances and in the manner particularly prescribed by
the enabling legislation. . . . The [act] is not triggered
by a claimant until he brings himself within its statutory
ambit. . . . Although the [act] should be broadly con-
strued to accomplish its humanitarian purpose . . . its
remedial purpose cannot transcend its statutorily
defined jurisdictional boundaries. . . .
‘‘In order to establish that [the] injury occurred in
the course of employment, the claimant has the burden
of proving that the accident giving rise to the injury
took place (a) within the period of the employment;
(b) at a place [the employee] may reasonably [have
been]; and (c) while [the employee was] reasonably
fulfilling the duties of the employment or doing some-
thing incidental to it. . . . An injury is said to arise out
of the employment when (a) it occurs in the course of
the employment and (b) is the result of a risk involved
in the employment or incident to it or to the conditions
under which it is required to be performed. . . .
‘‘Ordinarily, an injury sustained by an employee on
a public highway while the employee is going to or
coming home from work is not compensable. . . . A
principal reason for this rule is that employment ordi-
narily does not commence until the claimant has
reached the employer’s premises, and consequently an
injury sustained prior to that time would ordinarily not
occur in the course of the employment so as to be
compensable. Furthermore, in cases falling within the
ordinary rule, the employee’s means of transportation,
as well as his route are entirely within his discretion,
unfettered by any control or power of control on the
part of the employer. . . .
‘‘A number of exceptions, however, exist to the com-
ing and going rule. Those exceptions are: (1) [i]f the
work requires the employee to travel on the highways;
(2) where the employer contracts to furnish or does
furnish transportation to and from work; (3) where, by
the terms of his employment, the employee is subject to
emergency calls and (4) where the employee is injured
while using the highway in doing something incidental
to his regular employment, for the joint benefit of him-
self and his employer, with the knowledge and approval
of the employer.’’ (Citations omitted; emphasis omitted;
footnote omitted; internal quotation marks omitted.)
Id., 227–29.
The standards and legal principles related to our
workers’ compensation scheme are complex and no
amount of factual background presented to a jury would
enable them to determine the causal relationship
between legal malpractice, if any, and the plaintiff’s
alleged losses and damages without the assistance of
expert testimony, especially when the cause of action
involves the presentation of a case-within-a-case. In the
present matter, the plaintiff failed to provide expert
testimony as to causation, and for that reason the court
erred in denying the defendants’ motion to set aside
the verdict.19
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other judges concurred.
1
In this opinion we refer to Rosalind J. Koskoff as Koskoff and to Koskoff,
Koskoff & Bieder, P.C., as the firm, and to them jointly as the defendants.
Richard Bieder and Travelers Companies were defendants at trial, but they
are not parties to this appeal.
2
The plaintiff died during the pendency of this case, and Clifford A. Mollo,
the executor of her estate, was substituted as the plaintiff. In this opinion,
we refer to Sylvia N. Kuehl as the plaintiff.
3
See General Statutes §§ 31-294c, 31-306.
4
The defendants raised three claims on appeal: (1) the trial court erred
in refusing to enter judgment in their favor because the plaintiff failed to
offer expert testimony to prove causation; (2) even if the plaintiff had
produced expert testimony to show the outcome of the workers’ compensa-
tion proceeding, she failed to establish a necessary element of her claim
for her survivor’s benefits claim, i.e., that the decedent’s death was work
related; and (3) she failed to prove the standard of care and breach of the
standard. We resolve the appeal on the basis of the defendants’ first claim
and, therefore, need not address the others.
5
The substitute plaintiff filed a cross appeal claiming that the court erred
by (1) denying the plaintiff’s motion to set aside the verdict and motion for
judgment notwithstanding the verdict with respect to the jury’s finding her
15 percent comparatively negligent, (2) setting aside the $165,000 verdict
on the breach of contract count, (3) striking the failure to notify count of
the complaint, and (4) denying the plaintiff prejudgment interest pursuant
to General Statutes § 37-3a. Because we reverse the judgment on the ground
that the plaintiff failed to present expert testimony that the defendants’
alleged omission was a proximate cause of the plaintiff’s injuries, we need
not address the cross appeal.
6
The collision indirectly gave rise to two appeals in our Supreme Court.
See St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 802, 12 A.3d 852 (2011)
(workers’ compensation respondent had standing in declaratory judgment
action to challenge constitutionality of public act permitting claimant to file
claim for survivor’s benefits outside statute of limitations); Kuehl v. Z-Loda
Systems Engineering, Inc., 265 Conn. 525, 527, 829 A.2d 818 (2003) (plaintiff
precluded from obtaining survivor’s benefits under General Statutes § 31-
306 [a] because she failed to file notice of claim for compensation with
decedent’s employer or workers’ compensation commissioner).
7
In the present action, the plaintiff claims that the retainer obligated
the defendants to preserve any workers’ compensation rights she and the
decedent had. The defendants deny that claim and argue that they were
only obligated to pursue a personal injury action.
8
The trial court quoted from Kuehl v. Z-Loda Systems Engineering, Inc.,
supra, 265 Conn. 529, for the fact that the decedent’s compensation claim
had not yet been resolved and no benefits had been paid in connection with it.
9
The trial court in the present case found that Travelers had limited
involvement in the personal injury action given the possibility that it could
recover compensation benefits paid or payable to the decedent pursuant to
General Statutes § 31-293.
10
The workers’ compensation firm of Abate and Fox met with the decedent
to discuss his compensation claim but did not prosecute it on behalf of
the decedent.
11
In March, 2000, the plaintiff amended her complaint to add a third count
alleging that the defendants were aware of their negligence in failing to
advise her to file a timely claim for survivor’s benefits but failed to disclose
their knowledge to the plaintiff. That count was not submitted to the jury.
12
During the plaintiff’s case in chief, Koskoff testified, in relevant part,
that she knew nothing about worker’s compensation law. A letter written
by Koskoff that was placed in evidence stated that ‘‘[o]ur office . . . does
not do workers’ compensation law.’’
We note that there is no statute comparable to General Statutes § 52-
184c, which is applicable in actions alleging the negligence of a health-care
provider, for actions alleging negligence of an attorney. Section 52-184c (a)
states in relevant part: ‘‘The prevailing professional standard of care for a
given health care provider shall be that level of care, skill and treatment
which, in light of all relevant surrounding circumstances, is recognized
as acceptable and appropriate by reasonably prudent similar health care
providers . . . .’’ There is no issue on appeal concerning the qualifications
or legal specialization required to testify as to the standard of care applicable
to the type of law practiced by a defendant attorney. We note, however,
that the practice of law has become highly specialized.
13
The defendants specifically argued that ‘‘the plaintiff claims the defen-
dants were negligent such that the decedent’s ability to pursue a claim for
workers’ compensation benefits was lost. The original decision maker would
have been a workers’ compensation commissioner, an individual whose
experience and base of knowledge regarding workers’ compensation pro-
ceedings and law far exceed that of the jury.’’ Moreover, they argued ‘‘[i]t
is an axiom of [workers’] compensation law that awards are determined by
a two-part test. The [claimant] has the burden of proving that the injury
claimed [1] arose out of the employment and [2] occurred in the course of
the employment.’’ (Internal quotation marks omitted.) Perun v. Danbury,
143 Conn. App. 313, 316, 67 A.3d 1018 (2013).
14
The jury’s answers with respect to the plaintiff’s breach of contract
claim and associated verdict are not relevant to the issue in this appeal.
15
See also Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990)
(expert testimony must be evaluated in terms of helpfulness to trier of fact
on specific issues of standard of care and alleged breach of that standard).
16
Because we determine that the plaintiff could not prevail on her malprac-
tice claim due to her failure to present expert testimony with respect to
causation, we need not address her postverdict motions.
17
Willcutts testified that there was only one informal hearing on the dece-
dent’s compensation claim. There was never a formal denial of the claim.
Nonetheless, he did not testify that it was more likely than not that the
plaintiff would have prevailed if the claim had been pursued.
18
See Labadie v. Norwalk Rehabilitation Services, Inc., 84 Conn. App.
220, 228–29, 853 A.2d 597 (2004), aff’d, 274 Conn. 219, 875 A.2d 485 (2005)
(explaining coming and going rule).
19
The defendants also argue that the plaintiff failed to establish the stan-
dard of care because Willcutts testified as to his preferences and not the
baseline standard of care. The case of Vona v. Lerner, supra, 72 Conn.
App 179, is particularly instructive in the present case. In Vona, this court
reviewed the testimony of the plaintiffs’ expert and concluded that ‘‘the
court properly granted the defendants’ motion for a directed verdict. All of
[the expert’s] responses to the hypothetical questions asked of him with
respect to the proximate cause of the plaintiffs’ alleged damages were based
on his personal belief, as opposed to the standard of care, and were condi-
tional or speculative. As we noted in discussing the standard of review
applicable to challenges to directed verdicts, a trial court should direct a
verdict in the defendants’ favor where there is insufficient evidence to
support a verdict favorable to the plaintiffs.’’ (Footnote omitted.) Id., 190–91.
Our review of Willcutts’ testimony reveals that he opined that the defendants
violated the standard of care and deprived the plaintiff of the opportunity
to submit a claim for survivor’s benefits. He, however, did not opine that,
if the plaintiff had submitted a claim, she more likely than not would
have prevailed.