LM Ins. Corp. v. Connecticut Dismanteling, LLC

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LM INSURANCE CORPORATION v. CONNECTICUT
DISMANTELING, LLC
(AC 38179)
DiPentima, C. J., and Beach and Pellegrino, Js.
Argued November 18, 2016—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Hon. George N. Thim, judge trial referee.)
Jonathan J. Klein, for the appellant (defendant).
Christopher A. Klepps, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Connecticut Dis-
manteling, LLC, appeals from the judgment of the trial
court rendered in favor of the plaintiff, LM Insurance
Corporation. On appeal, the defendant claims that (1)
the court improperly admitted into evidence a certain
document under the business records exception to the
rule against hearsay, (2) there was insufficient evidence
to support the judgment rendered in favor of the plain-
tiff and (3) the court improperly drew an adverse infer-
ence against the defendant for failing to call two
witnesses at trial. We disagree with the defendant’s
claims, and, accordingly affirm the judgment of the
trial court.
Following a one day trial to the court, the following
facts and procedural history were set forth in its memo-
randum of decision. The defendant is in the business
of demolishing commercial and residential structures.
In 2011, it obtained a policy of workers’ compensation
insurance from the plaintiff. This policy covered a one
year period of time from September 6, 2011 to Septem-
ber 6, 2012. After receiving certain information, the
plaintiff made an initial determination that the total
premium for the year was $1000. At the conclusion of
that twelve month period, the plaintiff had an audit
conducted. As a result, the premium was revised and,
after all adjustments, the defendant was billed an addi-
tional $82,899. The process of adjusting the premium
involved a classification of workers by the type of work
performed, the business operation of the defendant,
and an investigation of the defendant’s payroll records,
accounts, ledgers and other documents.
The second policy obtained by the defendant from
the plaintiff covered the time period from September
6, 2012 to September 6, 2013. On January 7, 2013, the
plaintiff canceled the second policy as a result of non-
payment of the revised premium for the first policy.
Following the cancelation, one of the plaintiff’s employ-
ees, Kimberly MacBain, performed a second audit, and
determined the revised premium for the second policy
to be $11,713 for the time period of September 6, 2012
to January 7, 2013.
The plaintiff commenced this action, alleging a single
count of breach of contract; namely, the nonpayment
of $94,612, the total of the two revised premiums.1 The
defendant denied liability and countered that the plain-
tiff had miscalculated the revised premiums. Specifi-
cally, the defendant claimed that four of its employees,
Alfred Capozziello, Bob Stadt, Desmond Williams and
Matthew Brandimarte, had been classified incorrectly.
An incorrect classification substantially impacted the
amount due to the plaintiff. The premium was calcu-
lated by multiplying the classification code of an
employee by the payroll rate for each classification.
Specifically, the rate for the defendant’s employees clas-
sified under code 5403, carpentry not otherwise speci-
fied, was $21.69 per $100 of payroll. This rate was
significantly higher than employees classified as clerical
workers, thirty-seven cents per $100 of payroll, or out-
side sales persons, seventy-eight cents per $100 of
payroll.
The court noted MacBain’s testimony that ‘‘the rules
of workers’ [compensation] state that you apply the
class code that best fits the operation, and then you
pull out standard exception [employees]. . . . [I]t’s up
to the policyholder to show us backup on the specific
duties for standard exception employees.’’ In other
words, all of the employees of a particular employer
initially were classified with the code that best fit the
nature of the business as a whole. The employer then
had the opportunity to demonstrate that a different
code, with a lower rate, should apply to a particular
employee. Thus, the plaintiff used the code 5403 as the
default classification for all of the defendant’s employ-
ees due to its operation as a demolition business. The
court found that all of the defendant’s employees had
been classified properly with the exception of Alfred
Capozziello.2 The court also noted that the defendant
‘‘kept very loose records and when audited [provided]
minimum or suspect information concerning payroll
and job classifications.’’ (Internal quotation marks omit-
ted.) After adjusting for the misclassification for Alfred
Capozziello, the court rendered judgment in favor of the
plaintiff in the amount of $89,447.23 on April 23, 2015.
On May 8, 2015, the defendant filed a motion to rear-
gue pursuant to Practice Book §§ 11-11 and 11-12. Spe-
cifically, it claimed that the court erred by drawing an
unfavorable inference as a result of the defendant’s
failure to present Williams and Brandimarte as wit-
nesses during the trial. The defendant also noted that
the evidence at trial revealed that Brandimarte had died
prior to the start of the trial and that Williams had not
been an employee of the defendant. The court denied
the motion to reargue on July 2, 2015. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
admitted into evidence a certain document under the
business records exception to the rule against hearsay.
Specifically, he contends that the court improperly
admitted into evidence the first audit, conducted by
Steven White, because he was an employee of a third
party company and, therefore, his audit could not be
a business record of the plaintiff under this hearsay
exception. The defendant also argues that the plaintiff
failed to establish that the first audit was a business
record of the third party company because the founda-
tional elements for the business records exception were
not established. The defendant further argues that it
was harmed as a result of the evidentiary error. The
plaintiff counters that the court properly admitted the
first audit into evidence pursuant to our decision in
Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn.
App. 468, 531 A.2d 177 (1987). It further contends that
defendant’s challenge to the foundational elements of
the first audit was not raised before the trial court and,
even if it had been, it is without merit. We agree with
the plaintiff.
We begin by setting forth our standard of review.
‘‘The trial court’s ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . [Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did. . . . To the extent [that] a trial court’s
admission of evidence is based on an interpretation of
the Code of Evidence, our standard of review is plenary.
For example, whether a challenged statement properly
may be classified as hearsay and whether a hearsay
exception properly is identified are legal questions
demanding plenary review. . . . We review the trial
court’s decision to admit [or exclude] evidence, if prem-
ised on a correct view of the law, however, for an abuse
of discretion. . . . Additionally, [b]efore a party is enti-
tled to a new trial because of an erroneous evidentiary
ruling, he or she has the burden of demonstrating that
the error was harmful. . . . The harmless error stan-
dard in a civil case is whether the improper ruling would
likely affect the result.’’ (Citations omitted; internal quo-
tation marks omitted.) Milford Bank v. Phoenix Con-
tracting Group, Inc., 143 Conn. App. 519, 532–33, 72
A.3d 55 (2013); see also State v. Saucier, 283 Conn. 207,
218–221, 926 A.2d 633 (2007); Doyle v. Kamm, 133 Conn.
App. 25, 39, 35 A.3d 308 (2012).
Next, we identify the relevant legal principles regard-
ing the defendant’s evidentiary arguments. ‘‘Hearsay is
an out-of-court statement offered to establish the truth
of the matter asserted. Conn. Code Evid. § 8-1 (3). Hear-
say evidence is inadmissible, subject to certain excep-
tions. Conn. Code Evid. § 8-2.’’ Manka v. Walt Disney
Co., 149 Conn. App. 1, 4 n.6, 87 A.3d 1165 (2014); see
also Doe v. Hartford Roman Catholic Diocesan Corp.,
317 Conn. 357, 390, 119 A.3d 462 (2015). One such excep-
tion is the business records exception. See General
Statutes § 52-180; Conn. Code Evid. § 8-4. In order to
establish that a document falls within the business
records exception to the rule against hearsay, codified
at § 52-180,3 three requirements must be met. See Mil-
ford Bank v. Phoenix Contracting Group, Inc., supra,
143 Conn. App. 536. ‘‘The proponent need not produce
as a witness the person who made the record or show
that such person is unavailable but must establish that
[1] the record was made in the regular course of any
business, and [2] that it was the regular course of such
business to make such writing or record [3] at the time
of such act, transaction, occurrence or event or within
a reasonable time thereafter.’’ (Internal quotation marks
omitted.) Id., 535; see also C. Tait & E. Prescott, Con-
necticut Evidence (5th Ed. 2014) § 8.28.4, p. 600. Our
Supreme Court has explained that the rationale for this
exception ‘‘derives from the inherent trustworthiness
of records on which businesses rely to conduct their
daily affairs.’’ (Internal quotation marks omitted.) Con-
necticut Light & Power Co. v. Gilmore, 289 Conn. 88,
116, 956 A.2d 1145 (2008); see generally New England
Savings Bank v. Bedford Realty Corp., 246 Conn. 594,
600–601, 717 A.2d 713 (1998) (tracing common-law and
statutory origins of business records exception). Fur-
thermore, the business records exception is liberally
interpreted. New England Savings Bank v. Bedford
Realty Corp, supra, 603; see also C. Tait & E. Prescott,
supra, § 8.28.4, p. 600.
The following facts relate to this claim. MacBain, a
field audit manager employed by the plaintiff, testified
at the trial. She stated that White, an auditor for NEIS,
a vendor of the plaintiff, conducted the audit at the end
of the first policy period. White then provided that audit
to the plaintiff. MacBain further testified that she was
familiar with the results of that audit, that the audit
was kept in the usual course of the plaintiff’s business,
and that the report was created contemporaneously
with the audit. At this point, the defendant raised two
objections. First, defense counsel argued that the plain-
tiff’s counsel was attempting to qualify the audit as a
business record not subject to the rule against hearsay,
but no document had been shown to MacBain. Second,
counsel argued that the audit was created by a third
party and not the plaintiff, and therefore MacBain could
not authenticate it. The court sustained the objection
on the basis that no document had been presented
to MacBain.
The plaintiff’s counsel then had the document marked
for identification and showed it to MacBain, who identi-
fied it as the audit prepared by White for the plaintiff.
MacBain indicated that the White audit was in the pos-
session of the plaintiff and had been shared with the
defendant. The defendant’s counsel objected as follows:
‘‘This goes back to the second prong of the previous
objection, which is this is not a business record of
[the plaintiff]. This audit, the witness had testified, was
created by an independent auditor from NEIS, which
is an outside vendor. It’s—and—and whether it’s a busi-
ness record of NEIS that’s something that we don’t
know, but it’s certainly not a record of [the plaintiff].
It’s something that was provided by the outside [vendor]
to [the plaintiff], and it doesn’t satisfy the business
records exception under section 8-4 of the Code of
Evidence.’’ The court overruled the defendant’s objec-
tion, concluding that the White audit was a business
record of the plaintiff, and admitted it as a full exhibit.
A
The defendant first argues that the court improperly
admitted the White audit into evidence pursuant to the
business records exception to the rule against hearsay
because it was a business record of NEIS and not the
plaintiff. The defendant further contends that the deci-
sion relied upon by the trial court in overruling its
objection to the White audit, Crest Plumbing & Heating
Co. v. DiLoreto, supra, 12 Conn. App. 468, was decided
incorrectly. We are not persuaded by the defendant’s
arguments.
The defendant claims on appeal that this hearsay
exception does not apply to a business record created
by an entity other than the party seeking its admission
into evidence. Distilled to its essence, the defendant
challenges the applicability of the business records
exception in the case. Accordingly, we employ the ple-
nary standard of review. See Midland Funding, LLC
v. Mitchell-James, 163 Conn. App. 648, 653, 137 A.3d 1
(2016); Sharp Electronics Corp. v. Solaire Develop-
ment, LLC, 156 Conn. App. 17, 29, 111 A.3d 533 (2015).
A review of our decision in Crest Plumbing & Heat-
ing Co. v. DiLoreto, supra, 12 Conn. App. 468, will
facilitate the resolution of the defendant’s appellate
argument. That case involved a consolidated appeal
of three separate contract actions against a common
defendant, a partner in D & T Construction Company
(D & T). Id., 469. In one of the actions, the plaintiff,
Mac’s Car City, Inc. (Mac), entered into a contract with
D & T for the construction of a functioning automobile
dealership in exchange for $256,000. Id., 471. As a result
of delays, D & T defaulted and Mac commenced a breach
of contract action alleging incomplete and improper
workmanship. Id., 472. On appeal, D & T claimed that
the court improperly had refused to admit business
records of the construction mortgagee’s engineer into
evidence. Id., 472–74. We agreed with the defendant,
and reversed the judgment of the trial court. Id., 477.
The construction mortgagee, American National
Bank, had entered into a contract with Alfred Wilner,
Inc., a construction management corporation. Id., 472–
73. An engineer or architect employed by Alfred Wilner,
Inc., periodically was sent to the construction site to
conduct an inspection, and he forwarded six progress
reports to American National Bank. Id., 473. At the trial,
an officer of American National Bank testified that ‘‘it
was in the bank’s general course of business to keep
a record of the reports and that the reports were of
field inspections made by an engineer employed by the
bank.’’ Id., 473–74. D & T attempted to have these
reports admitted into evidence but was thwarted when
the trial court sustained the objection that, because the
business records were made by someone other than
D & T, § 52-180 was not satisfied. Id., 474.
We disagreed with the conclusion of the trial court.
Id. ‘‘In the present case, the trial court excluded the
engineer’s reports because they were prepared by a
party other than the organization whose business
records they were purported to be. There is no require-
ment in § 52-180, however, that the documents must
be prepared by the organization itself to be admissible
as that organization’s business records. All that is
required is that it be in the regular course of the business
to make the ‘writing or record.’ We believe that the
keeping of a report in a bank’s file that serves as a basis
of whether the bank will pay out money under a loan
agreement satisfies the statutory requirement of
‘record’ and that such a record could reasonably be
found to have been made in the course of the bank’s
business.’’ (Emphasis added.) Id., 475–76. We further
determined that the failure to admit these reports did
not constitute harmless error. Id., 476–77.
Although the defendant in the present case requests
this panel to revisit the holding of Crest Plumbing &
Heating Co. v. DiLoreto, supra, 12 Conn. App. 468, we
are not at liberty to do so. ‘‘[I]t is axiomatic that one
panel of this court cannot overrule the precedent estab-
lished by a previous panel’s holding. . . . As we often
have stated, this court’s policy dictates that one panel
should not, on its own, reverse the ruling of a previous
panel. The reversal may be accomplished only if the
appeal is heard en banc. . . . Prudence, then, dictates
that this panel decline to revisit such requests.’’ (Cita-
tions omitted; internal quotation marks omitted.) Staur-
ovsky v. Milford Police Dept., 164 Conn. App. 182,
202–203, 134 A.3d 1263, (2016), appeal dismissed, 324
Conn. 693, 154 A.3d 525 (2017) (certification improvi-
dently granted); see also Samuel v. Hartford, 154 Conn.
App. 138, 144, 105 A.3d 333 (2014); see generally Brody
v. Brody, 315 Conn. 300, 318 n.8, 105 A.3d 887 (2015);
Hylton v. Gunter, 313 Conn. 472, 488 n.16, 97 A.3d
970 (2014).
Additionally, in New England Savings Bank v. Bed-
ford Realty Corp., supra, 246 Conn. 603, our Supreme
Court directly quoted the language from Crest Plumb-
ing & Heating Co. that ‘‘[t]here is no requirement in
§ 52-180 . . . that the documents must be prepared by
the organization itself to be admissible as that organiza-
tion’s business records.’’ (Internal quotation marks
omitted.) This language was cited to support the court’s
reasoning in its analysis that certain documents were
admissible under the business records exception. See
also Calcano v. Calcano, 257 Conn. 230, 241, 777 A.2d
633 (2001) (noting that it is not necessary that witness
is entrant of business records or in employ of business
when entry was made). It is axiomatic that, as an inter-
mediate court, we are bound by the decisions of our
Supreme Court. ‘‘[I]t is manifest to our hierarchical
judicial system that [the Supreme Court] has the final
say on matters of Connecticut law and that the Appel-
late Court and Superior Court are bound by [its] prece-
dent.’’ (Internal quotation marks omitted.)
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 137 Conn. App. 307, 324, 48 A.3d 694
(2012), aff’d, 312 Conn. 513, 93 A.3d 1142 (2014); see
also Brooks v. Powers, 165 Conn. App. 44, 71 n.15, 138
A.3d 1012, cert. granted on other grounds, 322 Conn.
907, 143 A.3d 603 (2016); Hinde v. Specialized Educa-
tion of Connecticut, Inc., 147 Conn. App. 730, 747–48,
84 A.3d 895 (2014). In accordance with this commitment
to precedent, we conclude that the defendant’s argu-
ment that the White audit should not have been admit-
ted into evidence on the basis that it was not a business
record of the plaintiff is unavailing.
B
The defendant next argues that the plaintiff did not
establish the foundational elements for the business
records exception. Specifically, it contends that the
plaintiff failed to establish the statutory requirements
and, therefore, the White audit should not have been
admitted into evidence. See, e.g., C. Tait & E. Prescott,
supra, § 8.28.4 (a), p. 600. We conclude that this eviden-
tiary claim was not raised before the trial court, and
therefore not preserved for appellate review.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . Once counsel states the authority and ground
of [the] objection, any appeal will be limited to the
ground asserted. . . . Assigning error to a court’s evi-
dentiary rulings on the basis of objections never raised
at trial unfairly subjects the court and the opposing
party to trial by ambush.’’ (Internal quotation marks
omitted.) In re Kasmaesha C., 148 Conn. App. 666,
677–78, 84 A.3d 1279, cert. denied, 311 Conn. 937, 88
A.3d 549 (2014); Milford Bank v. Phoenix Contracting
Group, Inc., supra, 143 Conn. App. 534–35; see also
State v. Jose G., 290 Conn. 331, 342–43, 963 A.2d 42
(2009) (‘‘Practice Book [§ 5-5] provides in pertinent part
that [w]henever an objection to the admission of evi-
dence is made, counsel shall state the grounds upon
which it is claimed or upon which objection is made,
succinctly and in such form as he [or she] desires it to
go upon the record, before any discussion or argument
is had. [Practice Book § 60-5] provides in [relevant] part
that the Supreme Court [and the Appellate Court are]
not bound to consider a claim unless it was distinctly
raised at the trial . . . .’’ [Internal quotation marks
omitted.]); see generally E. Prescott, Connecticut
Appellate Practice & Procedure (5th Ed. 2016), § 8-2:1.1,
p. 440.
MacBain testified that White, an employee of NEIS,
provided the results of his audit to the plaintiff, that
she was familiar the results of White’s audit, that such
audits were kept in the usual course of the plaintiff’s
business and that the report of the results of the audit
was done contemporaneously with White’s audit. When
the plaintiff’s counsel inquired ‘‘what was the audit,’’
the defendant’s counsel raised two objections: first,
the actual audit had not been identified and shown to
MacBain or marked for identification and second, the
White audit was created by a third party, and not the
plaintiff. The court did not address the second objection
and instead sustained the first objection. After the plain-
tiff’s counsel showed the White audit to MacBain and
she identified it, she indicated that it had been prepared
for the plaintiff, it was in the plaintiff’s possession and
it had been shared with the defendant; it was then
offered as a full exhibit. The defendant’s counsel
objected solely on the basis that it had been created
by a third party and not the plaintiff.4 The court over-
ruled the defendant’s objection, concluding that the
White audit qualified as a business record and was
admissible on that basis.5
The defendant argues that the plaintiff failed to estab-
lish that the White audit was a business record of NEIS,
and therefore not a business record of the plaintiff. It
further contends that both of these determinations were
necessary to overcome the issue of ‘‘hearsay within
hearsay.’’6 The defendant also implicitly contends that
the questions posed by the plaintiff’s counsel and Mac-
Bain’s responses that occurred prior to the White audit
being shown to MacBain could not establish the founda-
tional requirements to qualify it as a business record
of the plaintiff.
The flaw in the defendant’s appellate argument is
that these specific objections never were raised before
the trial court, and therefore are not preserved for our
review. The defendant’s counsel first objected on two
grounds: first, the White audit had not been shown to
MacBain, and second, that the White audit was created
by a third party and therefore MacBain could not
authenticate it. The court agreed with the defendant as
to the first basis for its objection. After the plaintiff’s
counsel showed the White audit to MacBain and asked
her additional questions, the defendant objected again
solely on the basis that it was not a business record of
the plaintiff. The court overruled the objection on the
basis of our decision in Crest Plumbing & Heating Co.
v. DiLoreto, supra, 12 Conn. App. 468. At no point did
the defendant’s counsel move to strike any of MacBain’s
testimony or object on the basis that the foundational
requirement of the business records exception had not
been met. Therefore, we decline to review this eviden-
tiary claim that was raised for the first time on appeal.
See Calcano v. Calcano, supra, 257 Conn. 244–45; Mil-
ford Bank v. Phoenix Contracting Group, Inc., supra,
143 Conn. App. 534–35.7
II
The defendant next claims that the court improperly
determined there was sufficient evidence to support
the judgment rendered in favor of the plaintiff. Specifi-
cally, the defendant contends that the plaintiff did not
sufficiently establish the correctness and accuracy of
the two audits that are the bases for the premiums
claimed by the plaintiff. The defendant also argues that
several of the court’s factual findings regarding the clas-
sification of some of the defendant’s employees were
clearly erroneous. We are not persuaded by this claim
and decline the implicit invitation to retry the case.
At the outset, we set forth our standard of review
for a challenge to the sufficiency of the evidence. ‘‘[W]e
must determine whether the facts set out in the memo-
randum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in
the whole record, those facts are clearly erroneous.
. . . We also must determine whether those facts cor-
rectly found are, as a matter of law, sufficient to support
the judgment. . . . [W]e give great deference to the
findings of the trial court because of its function to
weigh and interpret the evidence before it and to pass
upon the credibility of witnesses . . . .’’ (Internal quo-
tation marks omitted.) Bhatia v. Debek, 287 Conn. 397,
404, 948 A.2d 1009 (2008); see also Rana v. Terdjanian,
136 Conn. App. 99, 113, 46 A.3d 175, cert. denied, 305
Conn. 926, 47 A.3d 886 (2012). Additionally, ‘‘[w]e do
not examine the record to determine whether the trier
of fact could have reached a conclusion other than the
one reached . . . . Rather, on review by this court
every reasonable presumption is made in favor of the
trial court’s ruling. . . . [E]vidence is not insufficient
. . . because it is conflicting or inconsistent. [The trier
of fact] is free to juxtapose conflicting versions of
events and determine which is more credible.’’ (Internal
quotation marks omitted.) Rozbicki v. Gisselbrecht, 155
Conn. App. 371, 377–78, 110 A.3d 458, cert. denied, 317
Conn. 905, 114 A.3d 1221 (2015); see also Masse v. Perez,
139 Conn. App. 794, 797–98, 58 A.3d 273 (2012), cert.
denied, 308 Conn. 905, 61 A.3d 1098 (2013).
‘‘The function of an appellate court is to review, and
not to retry, the proceedings of the trial court. . . .
Further, we are authorized to reverse or modify the
decision of the trial court only if we determine that the
factual findings are clearly erroneous in view of the
evidence and pleadings in the whole record, or that its
decision is otherwise erroneous in law. . . . In a civil
case, proof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact.’’ (Citation omitted; internal quotation marks omit-
ted.) Connecticut Bank & Trust Co., N.A. v. Reckert,
33 Conn. App. 702, 704–705, 638 A.2d 44 (1994). Guided
by these principles, we consider each of the defendant’s
argument in turn.
A
The defendant first argues that the plaintiff failed to
establish the accuracy of both audits that had been
conducted to calculate the premium for workers’ com-
pensation insurance. Specifically, it contends that the
plaintiff did not offer any evidence as to the factual
correctness and accuracy of the White audit for the
policy period of September 6, 2011 through September
6, 2012, nor did the plaintiff set forth the factual basis
for MacBain’s classification of certain employees in the
audit for the time period of September 6, 2012 through
January 7, 2013.
In part I of this opinion, we concluded that the White
audit properly was admitted into evidence pursuant
to the business records exception to the rule against
hearsay. We noted that this document was presented
through the testimony of MacBain. It is well established
that the witness who authenticates a business record
does not have to be the same individual who prepared
the report. First Union National Bank v. Woermer, 92
Conn. App. 696, 708–709, 887 A.2d 893 (2005), cert.
denied, 277 Conn. 914, 895 A.2d 788 (2006); see also
SKW Real Estate Ltd. Partnership v. Gallicchio, 49
Conn. App. 563, 576, 716 A.2d 903, cert. denied, 247
Conn. 926, 719 A.2d 1169 (1998).
Contrary to the defendant’s appellate argument, the
plaintiff was not obligated to establish the accuracy of
the White audit through MacBain’s testimony. In New
England Savings Bank v. Bedford Realty Corp., supra,
246 Conn. 602, our Supreme Court stated that ‘‘[t]he
proponent need not prove the accuracy of the [business]
record; its weight is an issue for the trier of fact.’’ See
also Midstates Resources Corp. v. Dobrindt, 70 Conn.
App. 420, 425, 798 A.2d 494 (2002); Federal Deposit Ins.
Corp. v. Carabetta, 55 Conn. App. 369, 375, 739 A.2d
301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999);
State v. Waterman, 7 Conn. App. 326, 341–42, 509 A.2d
518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986);
C. Tait & E. Prescott, supra, § 8.28.4, p. 600. The trial
court, as the trier of fact, was free to credit the two
audits and the data contained therein to render a judg-
ment in favor of the plaintiff for nearly $90,000.
B
Next, we consider the defendant’s argument that cer-
tain employees were misclassified and should not have
received the designation of code 5403. MacBain testified
that she had been employed by the plaintiff for nearly
thirteen years and had held the position of field auditor
prior to her promotion to field audit manager. She
explained that a field auditor examines the records of
a business and classifies the employees of that business
in order to determine the premium for the workers’
compensation insurance policy. MacBain stated that
the defendant’s business was demolition of commercial
businesses and that White, an auditor for NEIS, con-
ducted the first audit on behalf of the plaintiff.8 She
indicated that all of the nonclerical employees of the
defendant were classified under code 5403 as a result
of the nature of its business. Further, this code applied
to all of the defendant’s employees unless it was shown
that a particular employee belonged in the clerical or
sales classifications. MacBain noted that the defen-
dant’s burden was to show that the specific duties of
the employees present at a job site did not fall within
the 5403 classification. Finally, MacBain stated that she
had reviewed the White audit and it looked ‘‘correct’’
to her.
MacBain conducted the second audit and met with
two individuals representing the defendant, Russell
Capozziello, Jr., and David Cohen. MacBain reviewed
certain records of the business, but was not provided
with all of the information that she had requested. She
also testified that there was an anomaly in the defen-
dant’s payroll records. Furthermore, the defendant had
sought to have an excessive number of its employees
classified as sales personnel. Therefore, in MacBain’s
opinion, there was an insufficient number of employees
to perform the demolition work. MacBain also indicated
that she did not rely on an employee’s title, but inquired
as to the specific duties performed by that individual
in order to determine whether the employee should be
removed from the default classification.
The trial court clearly credited MacBain’s testimony
as the basis for the default classification of the defen-
dant’s employees. ‘‘The plaintiff applied an overall
default classification that was code 5403. This is the
classification that applies to workers in a demolition
business such as the defendant’s business.’’ The court
further found that an employee would not be removed
from the default classification unless that employee’s
duties were ‘‘ ‘100 percent’ ’’ sales or clerical. After
reviewing the evidence, the court found that the defen-
dant kept ‘‘ ‘very loose records and when audited [pro-
vided] minimum or suspect information concerning
payroll and job classifications.’ ’’
The defendant claims that the classification of Stadt
under code 5403 was clearly erroneous. We disagree.
MacBain testified that during her audit, she had a con-
versation regarding the duties of Stadt, the defendant’s
highest paid employee. She was told by representatives
of the defendant that Stadt was involved in sales but
also was present on the job site. MacBain also was told
that Stadt supervised the work done at the job site, and
the defendant did not provide her with any documenta-
tion detailing his duties or limiting them to only sales.
Because there was evidence in the record that Stadt
supervised employees of the defendant at a job site, a
duty outside of the parameters of a salesperson, he fell
within the default classification. We cannot say that
this finding was clearly erroneous. ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . We do not
examine the record to determine whether the trier of
fact could have reached a conclusion other than the
one reached. . . . Because the trial court had an oppor-
tunity far superior to ours to evaluate the evidence . . .
every reasonable presumption is made in favor of the
correctness of its ruling . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Rogan v. Rungee, 165
Conn. App. 209, 218, 140 A.3d 979 (2016).
Similarly, we reject the defendant’s contention that
the court’s finding regarding the classification of Bran-
dimarte and Williams was clearly erroneous. As we have
noted, the court found, based on MacBain’s testimony,
that the default classification of code 5403 applied to
all of the employees unless the defendant established
that a different code was applicable to a particular
employee. In its decision, the court noted that there
was ‘‘no credible evidence’’ that these two employees
should have been removed from the default classifica-
tion. The defendant presented the testimony of Russell
F. Capozziello, Sr., who stated that Brandimarte did not
work as a foreman on demolition sites and that Williams
only picked up flat tires from the defendant’s wrecking
yard, repaired the tires, and returned them to the yard.
The court, however, was free to reject this testimony.
See Jalbert v. Mulligan, 153 Conn. App. 124, 135, 101
A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107
(2014); Przekopski v. Przekop, 124 Conn. App. 238, 245,
4 A.3d 844 (2010). We conclude, therefore, that the
court’s findings regarding these employees were not
clearly erroneous and there was sufficient evidence in
the record to support the judgment rendered in favor
of the plaintiff.
III
The defendant’s final claim is that the court improp-
erly drew an adverse inference against it for failing to
call two witnesses at trial. Specifically, it argues that
the court erred by drawing an adverse inference against
the defendant for not calling Williams and Brandimarte
as witnesses and for finding that those two individuals
were employed by the defendant at the time of the trial.
We are not persuaded.
This claim is composed of two components. First,
the defendant contends that the court made improper
findings regarding the employment status of Williams
and Brandimarte. This challenge to the court’s factual
findings is subject to the clearly erroneous standard of
review. Second, the defendant claims that the use of
an adverse inference constituted an error of law, and
therefore is subject to plenary review by this court.
The following additional facts are necessary for our
discussion. At the trial, Russell Capozziello, Sr., was
asked if he knew Brandimarte. He replied that he had
known Brandimarte for twenty-five years and that he
had died. In the memorandum of decision, the court
stated: ‘‘Williams and . . . Brandimarte are still
employed by the defendant but were not called as wit-
nesses.’’ In its motion to reargue, the defendant pointed
to this sentence from the decision and contended that
court ‘‘construed against the defendant the fact that it
did not call . . . Brandimarte and . . . Williams to
testify at trial. The court’s misapprehension of the key
facts that . . . Brandimarte and . . . Williams are still
employed by the defendant were crucial to the
court’s decision.’’
The defendant then argued that the policy underlying
General Statutes § 52-216c applied to the present case.
That statute provides: ‘‘No court in the trial of a civil
action may instruct the jury that an inference unfa-
vorable to any party’s cause may be drawn from the
failure of any party to call a witness at such trial.
However, counsel for any party to the action shall be
entitled to argue to the trier of fact during closing argu-
ments, except where prohibited by section 52-174, that
the jury should draw an adverse inference from another
party’s failure to call a witness who has been proven
to be available to testify.’’ (Emphasis added.) General
Statutes § 52-216c. The defendant recognized that the
plain language of the statute prohibits a trial judge from
instructing the jury to draw an unfavorable inference
as a result of the failure to call a witness. Thus, because
this was a trial to the court and not a trial to a jury,
§ 52-216c does not apply. Nevertheless, the defendant
argued that as a matter of public policy, ‘‘it [was]
improper for the court, when it is the finder of fact, to
draw the adverse inference. Had this case been tried
to a jury, both the argument for the adverse inference
and the drawing of the adverse inference would have
been improper. Drawing the adverse inference here,
therefore, is contrary to public policy and should not
have been done.’’ On July 2, 2015, the court summarily
denied the motion to reargue.
First, we address the defendant’s contention that the
court’s finding that Williams was an employee of the
defendant was clearly erroneous. Russell Capozziello,
Sr., testified during cross-examination that Williams still
worked for him. Additionally, Williams was listed in
the White audit as having been paid for work as a
subcontractor. Williams also was listed in the MacBain
audit. As a result of this evidence, the court’s finding
that Williams was employed by the defendant, for pur-
poses of workers’ compensation insurance, was not
clearly erroneous.
The court’s statement that Brandimarte was still
employed by the defendant at the time of the trial and
memorandum of decision, however, is clearly errone-
ous. Russell Capozziello, Sr., testified that Brandimarte
had passed away. The defendant attached a copy of
Brandimarte’s obituary9 to its motion to reargue. The
plaintiff does not dispute the veracity of this assertion
by the defendant.10
We note that § 52-216c, by its plain language, does
not apply to the present case.11 That statute prevents
the court from instructing the jury that it may draw an
unfavorable inference as a result of the failure of a
party to call a witness. A bench trial occurred in the
present case. Further, it remains the law in this state
that ‘‘a trier of fact generally may draw an adverse
inference against a party for its failure to rebut evi-
dence.’’ In re Samantha C., 268 Conn. 614, 637, 847
A.2d 883 (2004).
Additionally, we disagree that the court drew an
adverse inference in this case. The court correctly
observed that the defendant could have presented the
testimony of Stadt or Williams to support the claim that
they should have been removed from the default code
5403 classification.12 In other words, the court’s com-
ment did not constitute an adverse inference as result
of the defendant’s failure to call its employees, Williams
and Stadt, as witnesses; rather, the court properly
observed that the defendant had failed to rebut the
plaintiff’s evidence that certain employees should not
have been removed from the default classification.13
For these reasons, we reject the defendant’s third claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘The elements of a breach of contract action are the formation of an
agreement, performance by one party, breach of the agreement by the other
party and damages.’’ (Internal quotation marks omitted.) Suntech of Connect-
icut, Inc. v. Lawrence Brunoli, Inc., 143 Conn. App. 581, 585, 72 A.3d 1113,
cert. denied, 310 Conn. 910, 76 A.3d 626 (2013); Seligson v. Brower, 109
Conn. App. 749, 753, 952 A.2d 1274 (2008).
2
See footnote 13 of this opinion.
3
General Statutes § 52-180 provides in relevant part: ‘‘(a) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall
be admissible as evidence of the act, transaction, occurrence or event, if
the trial judge finds that it was made in the regular course of any business,
and that it was the regular course of the business to make the writing or
record at the time of the act, transaction, occurrence or event or within a
reasonable time thereafter.
‘‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’’ See also
Conn. Code Evid. § 8-4.
4
Specifically, the defendant’s counsel stated: ‘‘Objection, Your Honor.
This goes back to the second prong of the previous objection, which is this
is not a business record of [the plaintiff]. This audit, the witness has testified,
was created by an independent auditor from NEIS, which is an outside
vendor. It’s—and—and whether it’s a business record of NEIS that’s some-
thing we don’t know, but it’s certainly not a record of [the plaintiff]. It’s
something that was provided by the outside [vendor] to [the plaintiff], and
it doesn’t satisfy the business records exception under section 8-4 of the
Code of Evidence.’’
5
The court stated: ‘‘Prepared at their request in the normal course of
business as kept by them. I conclude it’s a business record.’’
6
‘‘Connecticut Code of Evidence § 8-7, titled, ‘Hearsay within Hearsay,’
provides: Hearsay within hearsay is admissible only if each part of the
combined statements is independently admissible under a hearsay excep-
tion.’’ Dinan v. Marchand, 91 Conn. App. 492, 498 n.6, 881 A.2d 503 (2005),
aff’d, 279 Conn. 558, 903 A.2d 201 (2006); see also State v. Lewis, 245 Conn.
779, 802, 717 A.2d 1140 (1998).
7
Even if this claim was reviewable, we would conclude that it is meritless.
The necessary foundational questions were posed to MacBain, albeit prior
to the White audit being shown to her. Nevertheless, she answered these
questions, and there was no objection until she was asked, ‘‘what was the
audit?’’ Although the court sustained the defendant’s objection, there was
no request to strike MacBain’s responses. Once the White audit was marked
as an exhibit and shown to MacBain, the court was free to conclude that
her prior responses were applicable to that particular document. The defen-
dant has not provided us with any authority to the contrary. Mindful of
the modest standard necessary to establish that a document qualifies as a
business record and the broad discretion afforded to the court’s conclusion
that the White audit fell within the business records exception, we would
conclude that the court’s evidentiary ruling was not improper.
8
During cross-examination, MacBain conceded that she lacked any first-
hand knowledge of White’s education, training and level of experience in
conducting workers’ compensation audits, but did state that she had
reviewed audits that he had conducted with respect to other companies.
9
According to the obituary, Brandimarte passed away on June 19, 2014,
approximately eight months before the trial in the present case.
10
In its appellate brief, the plaintiff concedes that the ‘‘trial court indeed
was mistaken in finding that . . . Brandimarte was available to testify. He
passed away prior to trial.’’ It also posited that the court confused Brandi-
marte with Stadt.
11
Our Supreme Court, in State v. Malave, 250 Conn. 722, 735, 737 A.2d
442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099
(2000), explained the policy behind the enactment of § 52-216c. Specifically,
it observed that the ‘‘influence of the trial judge on the jury is necessarily and
properly of great weight, and . . . his [or her] lightest word or intimation is
received with deference, and may prove controlling . . . .’’ (Internal quota-
tion marks omitted.) Thus, the policy of § 52-216c is to prevent a jury from
being unduly influenced by a specific instruction from the court to draw
an adverse influence. This concern is absent from the present case.
12
Specifically, the court stated: ‘‘There is no credible evidence that shows
Stadt, Williams and Brandimarte should be taken out of the default classifica-
tion for the demolition business.’’
13
The defendant prevailed in rebutting the plaintiff’s evidence with respect
to one of its employees. ‘‘Alfred Capozziello was on the payroll for the first
audit period but was not [on the payroll] for the second audit period. Hence,
MacBain and the defendant’s representatives did not discuss his work duties.
Russell Capozziello [Sr.] testified that Alfred, who is now deceased, was his
brother. Alfred was age eighty-one at the time of the first audit. Russell
explained that, while his brother’s name appeared on the payroll, what
Alfred received was not really wages but a loan for medical expenses.
According to Russell, his brother merely picked up and dropped off papers.
Russell claims that Alfred was never at a demolition job site. Neither side had
more to offer on Alfred’s duties. The court finds that Alfred was incorrectly
classified. He was not at the job sites. Alfred Capozziello should have been
classified as a clerical office employee . . . .’’