Opinion
No. CV 06 4008977
July 9, 2008.
MEMORANDUM OF DECISION-SET ASIDE VERDICT I. NATURE AND HISTORY OF THE PROCEEDINGS
This case concerns a claim by the plaintiffs that the defendant Safeco Insurance (hereinafter, Safeco), through an independent insurance agent, the defendant John Cianciolo, and his employer, the defendant New England Insurance Agency, Inc. (hereinafter, New England), insured, as part of their Connecticut homeowners insurance policy, a condominium unit (unit #2334, South Seas Plantation), owned by them in Captiva, Florida, for damage to personal property located in said condominium. In July 2004, while, as the plaintiffs claim, said insurance coverage was in place, hurricane Charlie reaped major damage to said unit and destroyed the walls, ceilings and personal property contained therein. Safeco denied that the plaintiffs were covered under their Connecticut homeowners policy for such loss.
Thereafter, the plaintiffs initiated this action in five counts. In the first count of their "Revised Amended Complaint" dated March 30, 2006, the plaintiffs allege that, contrary to Safeco's assertions, their Connecticut homeowners policy did provide coverage for the Florida personal property casualty loss, coverage for which the plaintiffs paid the premiums from September 1999, up to and including the date of the hurricane. The plaintiffs allege that, by denying the coverage, Safeco breached their insurance contract. In the fifth count of said complaint, the plaintiffs allege, in the alternative, that Cianciolo and New England negligently represented to the plaintiffs that their Connecticut homeowners policy did, in fact, cover the loss of the Florida personal property, when said defendants knew or should have known that the policy provided no such coverage. Counts two, three, and four are against all three defendants. In count two the plaintiffs allege that Cianciolo represented that personal property coverage on the Florida condominium unit could be provided by Safeco through his agency as part of the plaintiffs' Connecticut homeowners policy and that the plaintiffs ceased pursuing other insurance options, based on Cianciolo's representation. The plaintiffs further allege that Safeco policy # OK 510624 provided such coverage and that they consistently paid the required premiums to keep said coverage in force. Plaintiffs allege that, to their financial detriment, they relied on the representations of not only Cianciolo and the defendant agency, but also Safeco, that the Florida personal property was covered. Count three involves allegations that all three defendants, in making unfair and deceptive representations, violated the Connecticut Unfair Trade Practices Act (General Statutes Section 42-110a et seq.), while count four alleges a simultaneous violation of the Connecticut Unfair Insurance Practices Act (General Statutes Section 38a-815 et seq.). Both of the defendants filed answers essentially denying the plaintiffs' allegations; Safeco filed a special defense that the aforementioned Connecticut homeowner policies specifically excluded coverage for the loss of personal property located in the Florida condominium unit owned by the plaintiffs.
In its answer, filed April 4, 2006, Safeco also asserts that the lawsuit instituted by the plaintiffs was barred by the policy's one year limitation period. This, however, was not pursued at trial.
By memorandum of decision filed December 7, 2007, the court (Pittman, J.) granted, in part, Safeco's motion for summary judgment, as it pertained to the first count of said complaint, i.e., the breach of contract count. Judge Pittman concluded, as to the Connecticut homeowners policy issued by Safeco:
Because the Florida property was held out for rental to others there was an exclusion for damage to any property damage occurring there. At no time did the Safeco policy of insurance cover damage to property in the Florida condominium. (Emphasis added.)
This court has attached hereto Judge Pittman's memorandum as Appendix I as it contains an excellent analysis of the two provisions in the plaintiffs' homeowners policy, i.e., "Option AAA" and the "additional interest endorsement" (#2085), that the plaintiffs' claim confirmed and justified their belief that the policy provided coverage for loss of the Florida personal property and which form the basis of their negligent misrepresentation claim lodged against all three defendants. Both provisions are included in Plaintiffs' Exhibits #1 through #5 which are copies of Connecticut homeowners policy #OK5106243, covering the period from September 12, 1998 through September 12, 2003. Plaintiffs' Exhibit #6 is a copy of the homeowners policy covering the period from September 12, 2003 through September 12, 2004; it contains the 2085 additional interest endorsement in favor of "South Seas Plantation Association," however, Option AAA is no longer included in the policy. Notably, neither the precise condo unit owned by the plaintiffs, nor the address of said unit is identified in any of the provisions of any of the policy documents submitted by the plaintiffs. Although Judge Pittman entered summary judgment on count one, she denied Safeco's motion as to count two, three and four, finding that several disputed issues of fact need to be determined by the trier of fact, all as set forth on page 7 of Appendix I. Thus, at the commencement of the trial, counts two through five of said complaint remained in play.
Editor's Note: Appendix I has not been reproduced herein.
The trial commenced before a jury on January 23, 2008, and concluded with a verdict accepted by the court on January 25, 2008. The court heard from four witnesses, including each of the plaintiffs, Cianciolo and William Burke, underwriting manager for Safeco. The court received a total of eighteen exhibits, ten offered by the plaintiffs and eight offered by the defendants. After the evidence had concluded, and after extensive discussion with counsel, a consensus was reached that the only legal theory of liability that remained viable, based on the testimonial and documentary evidence submitted to the jury, was the theory of negligent misrepresentation. It was agreed that the issue would be submitted to the jury, per the court's charge, as applicable to all three defendants. It was agreed that count two, brought against all three defendants on the theory of detrimental reliance, and count five, brought against Cianciolo and his employer on the theory of negligent misrepresentation, essentially involved a claim of negligent misrepresentation against all three defendants and, for the purposes of the charge to the jury, would be merged into that one legal theory against all of the defendants. The statutory counts would no longer be pursued by the plaintiffs, as the evidence did not support the allegations contained in the third and fourth counts of the plaintiffs' complaint.
On the third day of the trial the jury returned a monetary verdict in favor of the plaintiffs as against the defendants Cianciolo and New England Insurance Agency, Inc. only and did not find Safeco liable. The verdict form completed by the jury foreperson is, however, unusual in two respects. The verdict form, a copy of which is attached hereto as Appendix II, awarded damages to the plaintiffs as follows: "$41,000 as outlined on Plaintiffs' Exhibit 10 plus plaintiff's attorneys fees." During the trial this court, over the defendants' objection and after hearing argument in the absence of the jury, admitted as a full exhibit, Plaintiffs' Exhibit #10, which is a so-called "furniture package" offered by the condominium association to the plaintiffs, which the plaintiffs have accepted and had submitted partial payment. The issues surrounding the admission of this exhibit and the court's reasoning allowing plaintiffs' #10 as a full exhibit will be hereinafter extensively discussed. As to the unspecified amount of attorneys fees, before accepting the verdict, the court conducted a sidebar with counsel during which all agreed that the inclusion of the attorneys fees as part of the verdict was improper. Thereafter, by agreement, the court explained to the jury that, based upon a finding of negligent misrepresentation, the court had no authority to award attorneys fees. The court then accepted the $41,000 verdict, excluding any award of attorneys fees; the court then dismissed the jury and thanked them for their service.
As the plaintiff Thomas Bukowski testified and as Plaintiffs' Exhibit #11 shows, the plaintiffs have as yet not installed the package in the condominium unit, however, they have paid fifty percent of the purchase price and are obligated to the Association to pay the balance, once the unit is ready for full occupancy.
On January 31, 2008, the defendants John Cianciolo and New England Insurance filed a motion entitled, "Motion To Set Aside and For Judgment Notwithstanding the Verdict." On February 11, 2008, the court heard oral argument from the parties, however, while reviewing the memoranda, exhibits and testimony, the court determined that a reading of the exact testimony of the plaintiff, Thomas Bukowski, was essential to the court's continued deliberation. A transcript of that testimony was ordered on April 11, 2008, which was received by the court on May 12, 2008.
On the second day of the trial, after the plaintiffs rested, Safeco filed a written motion for directed verdict, a motion orally joined at the close of the evidence by Cianciolo and New England, however, the court opted to reserve decision on those motions and allowed the case to go to the jury. See Practice Book Section 16-37.
II. FACTUAL BACKGROUND
In addressing those facts which the jury might have deemed most relevant to its decision, the court will first recite verbatim that portion of its charge that presented to the jury both the factual background and the claims of the parties. The court will then supplement the charge by referring to that testimony and those exhibits which the court deems applicable to what the jury was told. Noteworthy is the fact that the following portions of the charge were each approved by counsel before the charge was given to the jury, with the notable exception of the charge pertaining to the duties of an insurance agent.
The Plaintiffs' Claim
Since early 1999, the plaintiffs have owned a rental condominium, unit number 2334, South Seas Plantation, Captiva, Florida. They claim that in September 1999 they sought to insure the personal property located in the condominium against damage and loss. They claim that the defendant, John Cianciolo, who was an insurance agent employed by the defendant, New England Insurance Agency, told them that he and his agency could obtain that coverage and add that coverage, at a minimum cost, to the plaintiffs' Connecticut homeowners insurance policy on their Kensington residence. Plaintiffs further allege that they relied on his representation, did not pursue other insurance options and accepted a policy issued by the defendant Safeco insurance company (OK 5106243), believing that their personal property at a Florida condominium was covered. They have continuously renewed that policy and paid the required premiums for each year through 2005.
In 2004, while the policy was in force, a hurricane (Charlie), severely damaged all of the furnishings therein. Thereafter, the plaintiffs filed the claim for the loss of their personal property in the condominium unit with Safeco, which denied the claim asserting that the policy did not provide for such a coverage.
The plaintiffs allege that they relied on the oral representations of the individual defendant and his agency and the written representations of the defendant Safeco, via an endorsement. They further allege that they believed, therefore, that the policy provided coverage for the personal property located at their Florida condominium, when there was, in fact, no such coverage provided by said policy during any time that the policy was in force. The plaintiffs claim that the defendants Cianciolo, New England Insurance and Safeco were negligent in making said representations, in that they knew or should have known that such coverage was not, in fact, provided by Safeco policy #OK 5106243 and that their negligence has resulted in monetary loss to the plaintiffs.
It is noteworthy that both Cianciolo and Thomas Bukowski testified that shortly after the plaintiffs purchased their Florida condominium unit on January 5, 1999 ( Defendants' Exhibit C), a discussion took place between them that resulted in Safeco, through New England, issuing the Option AAA and additional interest endorsement (#2085) Plaintiffs Exhibit #1. Specifically, option AAA added to the pre-existing homeowners policy that insured the plaintiffs' home in Kensington, liability coverage for the Florida condominium, which was referred to as "additional premises rented to others." The addition was effective February 1, 1999, and the pro rata additional premium was $23.79. At that time the "additional interest" endorsement, naming South Seas Plantation was also added to the plaintiffs' Connecticut policy.
The plaintiff, Thomas Bukowski, testified that during the summer of 1999, he discovered that liability coverage was provided through the condominium association. Thus, he realized that with the February addition to his Connecticut policy, he was doubly covered. He testified that he asked Cianciolo to "switch" the liability coverage and, in lieu thereof, provide personal property coverage for the Florida condominium. Cianciolo, in his testimony, denied that such a conversation ever took place and denied that any such switch was requested by Bukowski. Although plaintiffs' counsel in his brief asserts that Cianciolo's response was, " he could do it," a review of the transcript of the testimony of Thomas Bukowski confirms that the recollection of defendants' counsel is the appropriate one. According to that testimony, Cianciolo's response to Bukowski's request was: (1) he " didn't think that was a problem" and (2) He would " look into it." Transcript at page 10. Bukowski did not state that Cianciolo said that he would or could make the requested switch in coverage. Although Bukowski asserts that he relied on the option AAA and additional interest endorsement as confirmation that Cianciolo implemented the requested switch, as "[I] trusted my agent could do that" ( Transcript page 79), Bukowski admitted that he paid nothing for the endorsement, that the condominium unit owned by the plaintiffs was not identified in any of the policies issued from 1999 to 2005, and that the same provisions were contained in the Connecticut homeowners policy, both before and after the switch allegedly requested by Bukowski. Transcript pages 86-89. Moreover, Bukowski testified that no one from Safeco or New England ever told him that the 2085 additional interest endorsement provided coverage for personal property loss at the Florida condominium before the hurricane hit. Transcript page 100. As noted, as a matter of law, Judge Pittman found that no coverage for personal property loss at the Florida condominium was ever provided in any of the Safeco homeowners policies issued to the plaintiffs on their Connecticut residence. In fact, as Cianciolo and Burke confirmed, neither New England, nor Cianciolo was licensed to issue, as part of a Connecticut homeowners policy, coverage for the loss of personal property in a Florida condominium. Such a license could not be issued by the insurance commissioner of Connecticut and no such authorization could be granted to Cianciolo or New England by Safeco. Any such coverage would have to emanate from a licensed and authorized Florida insurance agent.
Cianciolo's and New England's Position
The jury was further instructed as follows:
Both the individual defendant and his agency deny that any conversation took place between Cianciolo and either of the plaintiffs regarding coverage for their personal property in the Florida condominium. Specifically, these defendants deny that either plaintiff requested such coverage and assert that the plaintiffs requested liability coverage only for the Florida condominium unit. Liability protection was, in fact, provided by the Connecticut's Safeco policy on the Florida rental unit. That coverage was known as "Option AAA," however, that coverage was no longer offered by Safeco and was removed from the policy at the commencement of the 2003-2004 policy year.
Although Cianciolo and New England confirmed the implementation of the plaintiffs' request for liability coverage on the Florida condominium unit as part of their Connecticut homeowners policy, they vehemently denied that either plaintiff requested that Cianciolo make the switch from liability to personal property coverage. They pointed to Option AAA providing liability coverage only, coverage which was removed at the beginning of the 2003-2004 policy year, as Safeco, no longer offered such an option in its homeowners policies. Despite the removal, however, the policy issued for that year continued to include the "additional interest" endorsement. See Plaintiffs' Exhibit #6. As noted, that identical endorsement was included in every policy issued by Safeco from 1999 through 2004, including the policy in effect before the plaintiffs' alleged requested switch from liability to personal property coverage on their Florida condominium.
Defendant Safeco's Position
With regard to Safeco's response to plaintiffs' claims, the jury was told:
The defendant Safeco Insurance Company claims that none of their employees ever had any direct conversation with either of the plaintiffs with regard to any coverage. They point out that the individual defendant, Cianciolo, and the agency that employed him, New England, were independent and, therefore, they submitted all policy requests to Safeco, on behalf of their clients, that is, the plaintiffs.
Defendant Safeco also correctly points out that it has been previously determined in this case, that, as a matter of law, at no time did policy #5106243 provide coverage for personal property loss relative to the Florida condominium. Safeco denies any representations made by its employees, or the terms of the insurance policy, to the contrary.
Thus, Safeco denied that any of its employees ever had any conversation with either plaintiff relative to the coverage provided by the plaintiffs' Connecticut homeowners policy. Safeco pointed out, as the jury was later instructed, that New England was an independent agency. Again the jury was instructed that at no time did any Safeco policy issued to the plaintiffs provide the coverage claimed by the plaintiffs. Safeco asserted that no representations to the contrary were contained within the policies issued to the plaintiffs.
The Plaintiffs' Response
The jury was provided with a summary of the plaintiffs' response to Cianciolo, New England and Safeco as follows:
The plaintiffs respond that Safeco, even after option AAA was withdrawn, continued to issue an endorsement showing that the condominium association had an "additional endorsement." This endorsement was known as #2085 and makes reference to "personal property." Thus, the plaintiffs claim that they reasonably believed that any loss of personal property in their Florida condominium unit was covered in the Connecticut homeowners policy.
Thus, the plaintiff, Thomas Bukowski, referring to the continued issuance by Safeco of the "additional endorsement," i.e., #2085, which makes reference to "personal property," claimed that such action caused him to reasonably believe that the so-called switch in coverage had, in fact, taken place. Again, the plaintiffs asserted that they held this reasonable belief, despite the fact that said endorsement, in the exact language, was in the Safeco Connecticut homeowners policy, both before and after the conversation alleged by the plaintiff to have taken place between him and Cianciolo concerning the requested switch of coverage.
III. ADDITIONAL RELEVANT INSTRUCTIONS A. Liability The Disputed Issues
As to the factual issues to be resolved, the jurors were told that they needed to address three basic issues.
In this case, there are essentially three disputed issues of fact that you, as the trier of fact, need to consider and to decide:
1. You must determine whether or not Mr. Cianciolo and Mr. Bukowski, discussed the subject of insuring, as part of the plaintiffs' Connecticut homeowners policy, their personal property located in their Florida condominium, and, if you find that such a discussion took place, you must determine, who said what to whom on that topic.
2. If you find such a discussion did in fact take place, then you must determine what, if any, statements Mr. Cianciolo made to Mr. Bukowski, relative to his intention or ability to insure, as part of the plaintiffs' Connecticut homeowners policy, the personal property in the Florida condominium.
3. You must consider and determine the effect, if any, that the conduct of Safeco in continuing to send the so-called "additional interest endorsement" to the plaintiffs, after the option AAA coverage was canceled. Would that action on the part of Safeco, in and of itself, given the fact and the legal finding that the policy never covered personal property in the Florida condominium, nevertheless, cause a reasonable person to conclude, as the plaintiffs claim, that the Florida condominium unit was covered, by a Connecticut homeowners policy, for the loss or destruction of personal property contained therein.
Obviously, in considering the above, the jury found the first and second issues in the plaintiffs' favor, as against Cianciolo and New England. The jury must have found that the discussion concerning the switch from liability to personal property coverage did in fact take place, as asserted by Thomas Bukowski and denied by Cianciolo. In addition, they must have found that Cianciolo's statements to Bukowski during that conversation left Bukowski with the impression that Cianciolo and New England could implement the requested switch. As noted, however, the undisputed testimony of Bukowski was that Cianciolo would "look into it" and that he "didn't think that was a problem" to make the switch in coverage. As to the third issue, since the jury found no liability against Safeco, they must have concluded that it was not reasonable for the plaintiffs to conclude that, based upon the plaintiffs' interpretation of language of option AAA and the additional interest endorsement, the requested switch in coverage was in fact implemented.
Duties of an Insurance Agent, Business Practice and Duty To Read Policy
The next three portions of the court's charge to the jury will be hereinafter discussed in so far as their relationship to each other is concerned.
Duties of an Insurance Agent
An insurance agent has the duty to exercise reasonable skill, care and diligence to see that his client has proper coverage. Where the agent undertakes to procure a policy affording protection against a designated risk, the law imposes upon him/her an obligation to perform with reasonable care the duty he/she has assumed. Selling insurance is a specialized field with specialized knowledge and experience. The agent has the duty to advise the client about the kind and extent of the desired coverage and the duty to choose the appropriate insurance for the client. The client ordinarily looks to his or her agent and relies on the agent's expertise in placing his/her insurance problems in the agent's hands.
Business Practice CT Page 12736
In considering the testimony of Mr. Cianciolo as to the manner in which he and the New England insurance agency did business, you may consider that evidence of a regular practice of doing certain things in a certain way, as evidence that such a course of conduct is followed on a particular occasion.
Duty To Read Insurance Policy
The Bukowskis had a duty to read their policies of insurance. They had a duty to know and confirm that their insurance policies contained the coverage they wanted for their Florida rental unit. The general rule is that where a person of mature years and who can read and write, signs or excepts a formal written contract affecting his pecuniary interest, it is that person's duty to read it and notice of its contents will be imputed to that person if that person negligently fails to do so. This rule applies to the Bukowskis. Therefore, the Bukowskis are assumed to have the coverage they wanted, and to know the contents of their policies of insurance.
The latter two instructions were requested by the defendants without objection by the plaintiffs, while the court, of its own volition, included the first instruction to, as it were, level the playing field. The court felt at the time and still holds that belief that since the jury was being instructed that it was obligatory on the part of the plaintiffs to read the insurance policies, it was only fair, just and reasonable to also instruct the jury, in general terms, as to the obligations of a licensed insurance agent. The instruction was also an accurate statement of the law on the topic. Dimeo v. Burns, Brooks and McNeil, Inc. 6 Conn.App. 241, 244 (1986).
Safeco Policies Not In Dispute
As a matter of law, the Safeco policies of insurance in this case are not at issue. There is no dispute that the Safeco policies of insurance do not, and never did, provide personal property coverage of the Bukowskis' rental unit in Captiva, Florida. The Bukowskis did not and never did have personal property coverage of their Florida rental unit through the Safeco policies of insurance.
You must accept that fact as a matter of law.
This instruction was requested by Safeco and was not objected to by the other parties. It informed the jury in no uncertain terms that the personal property coverage for the Florida condominium was never provided in any Safeco policies and that the jury is obligated, as a matter of law, to except that fact. This instruction, of course, echoed the finding made by Judge Pittman in deciding Safeco's motion for summary judgment.
Independent Agency
This instruction was requested by Safeco and was not objected to by the other parties:
The plaintiffs claim that Mr. Cianciolo, and the New England insurance agency acted as agents of Safeco and that Safeco is liable for their actions. The plaintiffs claim they requested coverage for the contents of their Florida condominium from Mr. Cianciolo and he represented that he and his agency could issue a policy which would provide coverage for their personal property located in Captiva, Florida.
If you find that the plaintiffs did not request Mr. Cianciolo obtain personal property coverage for their Florida rental unit, or that he did not agree that he could do so, then Mr. Cianciolo and the New England insurance agency are not liable, and neither is Safeco. You therefore do not need to deliberate any further, as all of the defendants would be relieved of liability in this case; you would, therefore, render a verdict in their favor.
The law in Connecticut, is that when an independent insurance agent acts to sell a policy or coverage to a client, the agent is the agent of the insurer. In this case, we have heard testimony, and all parties agree that the insurance agent, Mr. Cianciolo, is and was an independent agent and that the New England insurance agency was an independent insurance agency. If you find that the plaintiffs did request coverage for the personal property in the Florida condominium from Mr. Cianciolo, he was acting as the agent of the plaintiffs, because he is an independent insurance agent. You, therefore, would find for Safeco as to any liability for his acts and the acts of the New England insurance agency.
The first portion of the instruction makes it clear that in order to find Cianciolo and New England liable, the jury would have to find that the switch in coverage was in fact requested by Bukowski or that Cianciolo agreed to implement said coverage. Absent these findings, the jury was told that none of the defendants could be held liable to the plaintiffs for their loss. The second portion explains to the jury that Cianciolo was, in his dealings with the plaintiffs, acting as an independent agent of the Bukowskis. He was not the agent for Safeco, and his actions or inactions did not necessarily bind Safeco. The fact that the jury found against Cianciolo and New England and did not hold Safeco liable is indicative that they understood and followed this instruction.
Negligent Misrepresentation As to Cianciolo and New England
The plaintiffs claim that Mr. Cianciolo represented that he and his agency could issue a policy which would provide coverage for their Florida personal property located at their Captiva, Florida location. It is, the plaintiffs' burden to prove this claim. You have heard conflicting evidence from Mr. Bukowski and Mr. Cianciolo on this allegation. If you find that Mr. Cianciolo did not make such a representation, you need to deliberate no further on the plaintiffs' claims against them and the agency, but should find in favor of these defendants on all claims made in this case, for each of them depend upon such a representation having been made by Mr. Cianciolo. You should also find in favor of Safeco.
The plaintiffs further claim that "thereafter, defendant John Cianciolo and defendant New England Insurance Agency, Inc., as authorized agents, issued defendant Safeco insurance policy No. OK5106243, which purportedly provided such coverage." [Quoting the allegations in paragraph 5 of the second count of plaintiffs' revised amended complaint.] No evidence was produced that would allow you to conclude that Mr. Cianciolo or the defendant agency issued any policy of insurance, so I instruct you that you may not find that the policy upon which Mr. Bukowski claims he relied constituted a representation by Mr. Cianciolo or the agency. The court has previously determined that this insurance policy did not provide coverage for damage to the personal property of the Bukowskis located at their Captiva, Florida location. As Mr. Bukowski and Mr. Cianciolo agreed in their testimony that there was no conversation after the issuance of that policy in which Mr. Cianciolo made any representation that the policy relied upon by Mr. Bukowski in fact provided coverage for the personal property of the Bukowskis at the Florida location, there is no evidence to support any claim that Mr. Cianciolo or the agency made a misrepresentation as to the coverages provided by an existing policy of insurance. These factual distinctions are important in assessing any legal liability that Mr. Cianciolo or the agency may have to the Bukowskis.
This instruction is substantially in accordance with the requests submitted by Cianciolo and New England and was not objected to by the other parties. It explained to the jury that they heard conflicting testimony from Thomas Bukowski and Cianciolo as to whether Cianciolo told Bukowski he and his agency could make the requested switch, and that if the jury found that Cianciolo made no such representation, they should find for all of the defendants. The jury was also informed that neither Cianciolo, nor New England ever "issued" any insurance policy and, therefore, they could not be held liable for any alleged misrepresentation arising from the policy language. The jury was clearly told, once again, that despite the plaintiffs' claims of reliance on the policy endorsements and other provisions, the policy did not provide a basis for any alleged misrepresentation, as no personal property coverage was ever provided. The jury was also reminded that both Thomas Bukowski and Cianciolo agreed that no one represented to the Bukowskis that the policy, once issued, provided coverage for personal property at their Florida condominium.
The Elements of Negligent Misrepresentation
The following portion of the court's charge was adopted by the court from Daily v. Aetna Life and Casualty, 249 Conn. 766, 791-94 (1999), and Nagami v. Patrons Mutual, 280 Conn. 619, 626 (2006). It was substantially in accord with requests received from counsel and was acceptable to all parties:
In order to prove negligent misrepresentation, the plaintiffs must prove, by a preponderance of the evidence, that the defendants (1) supplied false information; (2) failed to exercise reasonable care in obtaining or communicating the information to the plaintiffs; (3) supplied the information to induce the plaintiffs to act on it; and (4) that the plaintiffs justifiably relied on the false information to their detriment. Unless you find that the plaintiffs have proven all of these elements, by a preponderance of the evidence, you must find in favor of the defendants.
After reciting all of the instructions quoted above, i.e., those relative to the claims of the parties and the liability issue, the jury was provided with the elements necessary to a finding of negligent misrepresentation, the sole remaining cause of action in the case.
B. Damages
The following instruction was given to the jury in two parts — a general damage instruction chosen by the court and an instruction specific to this case that is substantially in accord with that requested by Cianciolo and New England.
Damages In General
In a general sense, a civil trial, such as this has two issues: liability and damages. You will reach the issue of damages only if you find liability in favor of the plaintiffs. If you find that liability is established, you will have occasion to apply my instructions concerning damages. If you find that liability has not been established, then you will not consider damages. The fact that I am instructing you on both liability and damages should not be taken by you is any indication as to how the court would decide liability. Rather, my charge includes both liability and damages because I must give you instructions on all the issues in the case.
If you determine under the rules I've given you that the plaintiffs are entitled to recover damages, and only if you so determine, then the plaintiffs are entitled to recover only fair, just and reasonable compensation. It is not proper for a jury, in considering the question of damages, to attempt to be generous, rather than fair and reasonable. Also, you must keep in mind that it is not the jury's function to punish or to penalize the defendants. The object and purpose is to award the plaintiffs that sum of money, and only that sum of money, that is fair, just and reasonable compensation for any damages to which you find the plaintiffs are entitled as a result of the conduct of the defendants.
The burden of proving damages is on the party claiming them. Damages are to be proved with reasonable certainty. Damages are recoverable to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty. Damages are often not able to be calculated to an exact amount. Mathematical exactitude in the proof of damages is often impossible, but damages may be awarded if the plaintiffs provide sufficient evidence for you to make a fair and reasonable estimate of the amount of damages, an estimate that you find is supported by the credible evidence.
The burden is on the plaintiffs to prove their claim for damages, and this must be, as indicated, by a preponderance of the evidence. It is not expected that the defendants, should disprove anything. The plaintiffs, in order to recover, must introduce credible evidence to remove the subject of damages completely out of the realm of guess, surmise or conjecture.
The Specific Instruction
In this case, where the plaintiffs are claiming damage to personal property, the plaintiffs must prove the reasonable value of the property damaged or destroyed on the date of the hurricane. Among the factors to consider in determining the value of the personal property is the original cost of the personal property, the way in which its use had affected it and the increased cost of replacing it. The cost of replacement must factor in depreciation.
III. The Defendants' Motion and Plaintiffs' Objection
The defendants New England and Cianciolo (hereinafter referred to as defendants, since Safeco is out of the case) have filed a timely motion, pursuant to Practice Book section 16-37, asking the court to set aside the jury's verdict and to enter judgment in their favor. As noted, the court, having considered a motion for a directed verdict advanced by all of the defendants, allowed the case to go to the jury. The defendants argue that both from a liability perspective and damages, the jury's verdict was contrary to law and unsustainable on the evidence.
Section 16-37 of the Practice Book provides:
Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his or her motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judicial authority may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
A. As To Liability
As to the liability issue, the defendants assert that it was error for the court to instruct the jury on the duties of an insurance agent, as the lack of any duty of care that was owed by Cianciolo to the Bukowskis, and any breach of such a duty were not issues raised by the plaintiffs in their complaint. The defendants, therefore, claim that the court, by giving this instruction, injected the issue of negligence into the case, which was not an issue advanced by the plaintiffs. As to the sole cause of action remaining in the case, negligent misrepresentation, the defendants argue that, given the uncontroverted evidence, the jury could not have found the elements necessary to support a finding of negligent misrepresentation, as instructed by the court. The defendants argue that the jury could not have reasonably found that Cianciolo made a misrepresentation of fact, as Thomas Bukowski's testimony simply attributed the statement to Cianciolo, when asked about the "switch" in coverage from liability to personal property, that, "he would look into it." If he did say this, and then failed to do so, that is an omission and possibly negligence, however, if that omission was actionable, the defendants argue, it was not alleged in plaintiffs' compliant. Moreover, the statement, according to the defendants, is not a misrepresentation of fact; thus, defendants assert that the first element of a negligent misrepresentation claim could not have been reasonably found by the jury, based on the testimony of the plaintiff Thomas Bukowski.
Additionally, the defendants argue that the jury, even if they found that the statement attributed to Cianciolo by Thomas Bukowski, was a "misrepresentation of fact," they could not, based on the evidence, find that the plaintiffs relied on the statement. What the plaintiffs relied on, according to the testimony of Thomas Bukowski, was Bukowski's erroneous interpretation of the AAA option and additional interest endorsement and not on any representation by Cianciolo that those policy provisions, in fact, provided coverage. The defendants argue, if the jury's findings were based on Cianciolo's failure to inform the Bukowskis that he did not obtain the required coverage, that finding, i.e., Cianciolo's failure or neglect in following through with "I'll look into it," would be beyond the scope of the pleadings. The defendants also point out that, per the court's instructions on independent agency, any conduct by Safeco, vis-a-vis the endorsements, cannot be attributed to Cianciolo or New England. As the defendants correctly assert, any endorsement sent by Safeco cannot be determined to be a "misrepresentation" by Cianciolo that the switch in coverage was implemented.
Referring to the court's instruction concerning the obligation of the plaintiffs to read the policies provided to them, the defendants point to the policy exhibits, which, as noted, make it clear that the additional interest and option AAA endorsements were included in the Bukowskis' Connecticut homeowners policy, both before and after the switch in coverage was allegedly requested by the plaintiff, Thomas Bukowski. The defendants argue that, had the plaintiffs read the policies, which according to Bukowski, he only "skimmed," they would have realized that their misinterpretation was clearly erroneous and unreasonable. The defendants, therefore, argue that the jury, based on the evidence, could not have reasonably reached any other conclusion.
In addition, the defendants argue, as to the elements of negligent misrepresentation, that the jury could not have found from the evidence that Cianciolo possessed any "intent to induce" the Bukowskis to refrain from looking for other coverage. The defendants cite in support thereof J. Fred Scholes Agency v. Mitchell, 191 Conn. 353, 359 (1983), in which our Supreme Court stated:
An actionable misrepresentation, whether made knowingly, recklessly, negligently or innocently, must be made for the purpose of inducing action upon it.
The defendants argue that there was no testimony that Cianciolo told either of the plaintiffs to hold off looking at other alternatives in order to obtain coverage for the personal property at the Florida condominium.
In summary, on the liability issue, the defendants argue that there is no evidence to support two of the four elements necessary to a finding of negligent misrepresentation, and there is no evidence of any intent by Cianciolo to induce either of the plaintiffs into refraining from taking any action relative to their insurance coverage. Thus, the jury, in order to find liability against Cianciolo and New England, could find only a breach of the standard of care of an insurance agent, i.e., Cianciolo's failure to follow through with "I'll look into it," which was not a theory of liability included in the plaintiff's complaint.
In response to the defendants argument as to liability, plaintiffs, in their objection to the defendants' motion, argue that Paragraph #9 in the Fifth Count of their Revised Amended Complaint does invoke the negligent aspect of a cause of action based on negligent misrepresentation. The plaintiffs allege in said paragraph that:
Defendant's Cianciolo and New England Insurance knew or should have known that the insurance coverage provided by the subject policy referenced above did not provide coverage for the personal property located at the Captiva, Florida location, or that at some point after the initial issuance of said policy that such coverage was no longer available. (Emphasis added.)
Plaintiffs' counter argument to the defendants' position on this issue is, however, largely based on counsel's mischaracterization of Thomas Bukowski's testimony. In his brief, plaintiffs' counsel claims that the recollection of defendants' counsel as to the testimony of Thomas Bukowski on the subject of the request made to Cianciolo to switch his coverage, "distort[ed]" that testimony. Plaintiffs' counsel insisted that Bukowski testified that Cianciolo said, referring to the requested switch that " he could do it." As noted, the testimony was that Cianciolo said he " didn't think that was a problem" and that, he " would look into it." Thomas Bukowski did not, contrary to the insistence of his attorney, testify that Cianciolo said, at any time, that he " could" switch the coverage. As noted, it was this significant discrepancy between the recollection of counsel that prompted the court to obtain a transcript of Thomas Bukowski's testimony. It is, perhaps, noteworthy that this court's notes, taken at the time Bukowski testified, were consistent with the recollection of defendants' counsel.
As to the defendants' argument that the jury could not have found two of the four elements required in order to prove a negligent misrepresentation claim, the plaintiffs respond by stressing the long-standing business relationship between Cianciolo and the Bukowskis, during which Cianciolo and New England, not only procured insurance for the Bukowskis' Connecticut residence and insured their Florida condominium for liability, but issued policies covering all of the insurance needs of the business operated by Thomas Bukowski known as Safari Golf located in Berlin. Based upon the nature and length of that relationship, plaintiffs argue that the jury could have reasonably found the necessary element of reliance. On the element of misrepresentation of fact, both counsel appear to concentrate on the issue of whether Cianciolo's response to Bukowski's request to switch coverage, according to Bukowski, was either, "he could do it," as the plaintiffs erroneously argue or that he "would look into it," as defendants correctly assert. As will be hereinafter addressed, however, this court deems Cianciolo's additional response as being the crux of the negligent misrepresentation issue. According to the transcript of the testimony of Thomas Bukowski, that additional response was that Cianciolo, " didn't think that was a problem!" Transcript page 10.
B. As To Damages
In their memorandum in support of their motion to set aside the verdict, the defendants argue that the court committed error in admitting into evidence the so-called "furniture package," Plaintiffs' Exhibit #10. The defendants point out that there was no cost assigned to any item on said exhibit; that a number of the items on the list (shutter blinds, for example) were not in the plaintiffs' condominium unit; that a number of items were not personal property (light fixtures, blinds, chandelier, mirror) and that neither of the plaintiffs were able to provide a purchase price, value or age of any of the items located in the condominium unit at the time that the hurricane hit. The defendants also point to the language at the bottom of Plaintiffs' #10, i.e., "above cost include delivery, installation, purchasing, design and administration fees." They argue that even though no value is assigned to any of the costs mentioned, and even though the plaintiffs could not establish a value for said costs, there was no dispute that whatever value those items might have, none would have been paid as part of a personal property insurance claim. The court notes that Thomas Bukowski admitted this fact during his testimony. Transcript, page 111. Thus, the defendants assert that for the jury to award as damages the entire amount of the exhibit, when they were well aware, through Bukowski's testimony that the items listed at the bottom could not be part of the jury's damage award, was contrary to the evidence and the court's instruction on damages.
Additionally, the defendants correctly assert that the plaintiffs did not know the age of the furnishings, or what value was assigned to them, when they purchased the condominium unit in 1999. The defendants argue that Plaintiffs' #10 provided no foundation upon which a reasonable estimate of damages could be made, as no price was attached to any item in the exhibit. The plaintiffs, therefore, could not and did not prove: (1) which items were required to be replaced; (2) the cost of those items; (3) the condition of those items at the time of the hurricane and, as noted, (4) the cost of the items listed at the bottom of the exhibit. By awarding the entire amount of said exhibit as damages, the jury, defendants argue, awarded an amount in excess of the amount of money the plaintiffs would have recovered from Safeco had the policy provided the coverage that the plaintiffs' claim. This, defendants assert, constitutes a mistake under the law of damages, as such an award was excessive, overly generous and unreasonable — clearly contrary to the court's instructions on the manner in which the jury should approach the issue of damages. Finally, the defendants, citing Right v. Breen, 277 Conn. 364 (2006), ask the court to enter judgment in their favor, as the entire damage award was grounded in Plaintiffs' Exhibit #10.
In their response to the defendants' argument on damages, the plaintiffs first make reference to the fact that there was an exhibit before the jury that established the actual cost of replacing appliances that were destroyed by the hurricane. Plaintiffs' Exhibit #12 establishes the total cost of $1,633.46 for the replacement of a refrigerator, stove, microwave oven and dishwasher. The plaintiffs argue that the jury could have used the cost of the appliances to offset the unknown and unestablished costs of the items in plaintiffs' #10, to which the defendants refer in theft argument. The plaintiffs also claim that Thomas Bukowski gave "ample testimony" as to the contents of each room in the three-bedroom condominium unit, the apparent age of the items, their use and their quality. Since the furnishings were, at the very least, five years old at the time of the loss, plaintiffs argue that the jury could have fully depreciated the items, assigned a "scrap value" to them and awarded an estimate of the full replacement cost of the items, many of which were shown in photographs, admitted as full exhibits. Plaintiffs' Exhibit's #7A, B and C. Plaintiffs cite Bader v. United Orthodox Synagogue, 148 Conn. 449, 454 (1961), in support of their argument that the valuation of furnishings is a function that a jury is quite capable of performing and does not, therefore, "go beyond the field of the ordinary knowledge and experience of judges or jurors." The plaintiffs, therefore, assert that, in light of the photographs, Bukowski's testimony and their own knowledge and experience, the jurors could have and did, consistent with the court's instruction on damages, reach a fair, just and reasonable verdict that is devoid of speculation, conjecture or guess.
IV. APPLICABLE LAW A. The Court's Post-Verdict Discretion — In General
An excellent analysis of the legal parameters governing a trial court's post-jury verdict inquiry was offered by Justice Hull in the case of Mather v. Griffin Hospital, 207 Conn. 125 (1998), at pages 138-39:
Litigants have a constitutional right to have factual issues resolved by a jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for any reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court . . . In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict. (Internal quotation marks and citations omitted, emphasis included.)
When called upon, via post-verdict motions, to analyze a jury verdict, the court must determine whether the jury could have reached its result based on the evidence presented at trial and reasonable inferences which the jury could have made from that evidence. Ipacs v. Cranford, 65 Conn.App. 441, 443 (2001). Thus, the trial court must examine the evidential underpinnings of the verdict to determine whether the evidence furnished a reasonable basis for the jury's conclusion. The court should not, however, refuse to set aside a verdict, where the manifest injustice is so plain as to indicate that some mistake was made by the jury in the application of the relevant legal principles. American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 774 (1992). If the court, after examination of the evidence, finds that the verdict is so clearly against the weight of the evidence as to indicate a misapplication of the law or that the jury was governed by ignorance, then the court has a duty to set aside the verdict. Vickers v. Jessup, 32 Conn.App. 360, 370 (1993).
"A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Card v. State, 57 Conn.App. 134, 138 (2000). "A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion. The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict." (Internal quotation marks omitted.). Phelps v. Lankes, 74 Conn.App. 597, 600 (2003). "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." Wichers v. Hatch, 252 Conn. 174, 189 (2000).
B. As To Damages
Our Supreme Court has consistently cautioned that, particularly injury cases, the amount of damages that a jury decides to award is within its province as the trier of fact. Herb v. Kerr, 109 Conn. 136, 139 (1983); Pisel v. Stamford Hospital, 180 Conn. 314, 342 (1980). "Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating theft amount in money with reasonable certainty." Emphasis added. Gilliard v. Van-Court, Property Management Services Ltd., 63 Conn.App. 637, 644 (2001). "Although it is the jury's right to draw a logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . ." McCann v. Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 490 (2006); cert. denied, 277 Conn. 928 (2007). "[Although] the line between permissible inference and speculation is often hard to discern an attempt to draw such a line is part of the adjudicative process." Burton v. City of Stamford, (CV 03 0197324, Jennings, J.), 2007 Ct.Sup. 20113 (2007), citing State v. Wells, 100 Conn.App. 337, 343 (2007). Drawing that line, therefore, is one of the important functions and obligations of the jury.
A court should be especially hesitant to set aside a jury's award of damages . . . That damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established . . . [However], the plaintiff has the burden of proving the extent of the damages suffered. Although the plaintiff need not provide such proof with mathematical exactitude, the plaintiff must, nevertheless, provide sufficient evidence for the trier to make a fair and reasonable estimate. (Internal citations and internal quotation marks omitted.)
Rejouis v. Greenwich Taxi, 57 Conn.App. 778, 784-85 (2000).
This principle is unaffected by the subsequent history of the case. See 236 Conn. 132 (2003).
The plaintiff is required to lay an evidential foundation so that, given the circumstances of the particular case, the jury is able to make a fair and reasonable estimate of the money damages to which, in its view, the plaintiff is entitled. Id. at Page 786.
C. Negligent Misrepresentation
As previously contained herein, the court instructed the jury that the requisite elements of a claim based on the theory of negligent misrepresentation, consists of supplying false information to another, while failing to exercise reasonable care in either obtaining or communicating the information, for the purpose of inducing the other to act upon it, resulting in the other person relying on information to his or her detriment. Our appellate courts have long recognized the doctrine of negligent misrepresentation, and have adopted, in establishing the requisite elements, the provisions of the Restatement of Torts, cited by the defendants in their brief:
This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth. The governing principles are set forth in similar terms, in [Section] 552 of the Restatement (Second) of Torts (1977): "One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or confidence in obtaining or communicating the information." (Internal citations omitted.)Williams Ford, Inc. v. Hartford Courant, 232 Conn. 559, 575 (1995); also see Glazer v. Dress Barn, Inc., 274 Conn. 33, 72-73 (2005).
In Williams Ford, the court found that there is no requirement of a special relationship to have existed between the parties in order for a claim of negligent misrepresentation to be pursued, however, "the plaintiff must allege and prove that the reliance on the misstatement was justified or reasonable, [adding], [W]e have consistently held that reasonableness is a question of fact." Id. at Page 580. The court further instructed that, in making its determination as to the reasonableness of the plaintiffs' reliance, the jury is permitted to consider, "the casualness of the allegedly false statements and the context in which they were made." Id. at Page 580. Thus, according to the appellate court, a casual misstatement could, in a proper case, provide the basis for a legally recognizable claim based upon negligent misrepresentation. As our Supreme Court stated decades ago: "Fraud and misrepresentation cannot be easily defined, because they can be accomplished in so many different ways. They present, however, issues of fact." Miller v. Appleby, 183 Conn. 51, 54-55 (1981).
V. ANALYSIS OF THE VERDICT A. Negligent Misrepresentation
With the governing legal principles set forth in the previous section in mind, the court will analyze and make its findings on the issues of liability and damages. With regard to liability the court finds that the jury could have reasonably found from the evidence that the plaintiff had established, by a fair preponderance of that evidence, all four of the elements necessary to establish a claim of negligent misrepresentation, under the court's specific instruction and pursuant to the provisions of the Restatement, as implemented by our appellate courts.
Cianciolo testified that he had been an insurance agent for thirty years during which he marketed and sold all types of insurance. He stated that, sometime prior to procuring from Safeco a homeowner's policy for the Bukowskis in September 1998, he provided policies for the insurance needs of Safari Golf, a business owned and operated by Thomas Bukowski. The jury, therefore, could have reasonably inferred that there had been a continuing relationship between Cianciolo, insurance agent, and Thomas Bukowski, as his client, at the time that the conversation about the so-called switching coverage occurred in the summer of 1999, as alleged by Bukowski. The jury, by its verdict, against Cianciolo and New England, reasonably could have concluded that the conversation between the two men did in fact take place, a conversation that was denied by Cianciolo. The jury obviously disbelieved Cianciolo and accepted as the truth Bukowski's account of that conversation. That account included Bukowski's testimony that Cianciolo's response was, that, "he didn't think that was a problem," and that he would, "look into it." Bukowski testified that, "I trusted my agent could do that," when referring to a conversation between the two in February 1999, asking Cianciolo if he could add liability coverage for the Florida condominium to his Connecticut homeowners policy. Transcript, page 79. Defendants' Exhibit D is a binder confirming that coverage. Thus, the jury could have found that it was reasonable for Bukowski to rely on Cianciolo's representation that Cianciolo didn't think that the switch from liability to personal property coverage posed a problem. That statement, having been made, the jury could have found reasonable Bukowski's testimony that he refrained from pursuing any other options as he "thought I was taken care of." Transcript page 11. The jury, therefore, could have reasonably found that Bukowski relied on the representations and, as a result of Cianciolo's representations, ceased pursuing other insurance options.
As to the representation by Cianciolo that he "didn't think that was a problem," the jury could have easily concluded that, not only was the statement false, but that it was negligently made. Cianciolo and Burke, the Safeco underwriter, testified that Cianciolo and New England had no legal authority to add personal property coverage for a Florida condominium to a Connecticut homeowners policy. Therefore, the jury could have reasonably concluded that, in light of Cianciolo's thirty years in the business and the ongoing agent-client relationship that Cianciolo and New England enjoyed with the Bukowskis, Cianciolo, "knew or should have known" that telling Thomas Bukowski that the requested switch shouldn't be a problem was a false statement of fact, as Cianciolo knew or should have known that he was legally prohibited from doing what his client asked. Moreover, the jury could have reasonably concluded that, despite Bukowski's erroneous and even negligent misreading of the subsequent policies, Bukowski reasonably relied on Cianciolo's false statement and believed that the requested switch was implemented by a person, in a business relationship, in whom Bukowski placed his trust. The detrimental result, the jury could have reasonably concluded, was that there was no coverage for the loss of the personal property in the Florida condominium.
Based upon the court's instruction as to the elements required to sustain a claim of negligent misrepresentation, the jury, therefore, could have reasonably found, by a preponderance of the evidence, that Cianciolo failed to exercise reasonable care and, as a result of that lack of due care (a negligence concept), communicated false information to Bukowski. Given the ongoing relationship in which Bukowski placed his trust in Cianciolo, the jury could have reasonably found that, as a result of the false information, Bukowski was induced to cease pursuing other insurance options and that, whether innocently or not, Cianciolo supplied the information to his client as an inducement to refrain from taking further action in pursuing other sources of coverage. Finally, the jury could have reasonably found that Bukowski was justified in relying on the false information to his detriment.
As to the Restatement standard, the jury could have reasonably found that, in a business relationship, Cianciolo supplied false information for Bukowski's guidance relative to his insurance needs; that Cianciolo failed to exercise reasonable care in communicating information, which, based upon his thirty years in the insurance business, he knew or should have known was false and misleading; that Bukowski justifiably relied on the false information and suffered a pecuniary loss as a result, as he refrained from pursuing other insurance options.
Moreover, the facts of this case, as could have been reasonably found by the jury, may very well fall into the casual statement category referred to by our Supreme Court in Williams Ford, supra, particularly, in light of the context in which Cianciolo made the statement that he didn't think the switching coverage was a problem. Again, given the ongoing agent-client relationship and Cianciolo's decades of experience in the insurance business, the jury could have found that it was reasonable for Bukowski to rely on said statement and to refrain from pursuing personal property coverage for the Florida condominium any further.
B. Instruction Re: The Duty of an Agent
As quoted earlier herein, the court opted to give the jury an instruction, in brief and in general terms, as to the basic duties of an insurance agent. That instruction was an accurate statement of the law as set forth in the Dimeo, supra. The court opted to give the instruction as it deemed the same to be a fair counterpoint to that instruction given by the court, at the defendant's request, concerning the obligations of an insured to read his or her policy. As noted, the defendants took exception to this instruction, claiming that it would cause confusion in the minds of the jurors and, somehow, convert a case based on negligent misrepresentation to one founded on traditional concepts of lack of duty of care, i.e., negligence.
As referenced above, both the instruction on negligent misrepresentation that the court gave to the jury ("failed to exercise reasonable care in . . . communicating the information to plaintiffs"), and the Restatement test ("if he fails to exercise reasonable care or confidence in . . . communicating the information") include, as an integral part thereof, a lack of reasonable care. The court simply informed the jury that, although the plaintiffs had a duty to read their insurance policies, their agent also had a "duty to exercise reasonable skill, care and diligence to see that his client had proper coverage." The jury was also told that a client, "looks to his or her agent and relies on the agent's expertise" for insurance needs. The issue of reasonable care the issue of reliance are two of the four elements that the jury was obligated to consider pursuant to the instruction on negligent misrepresentation. As noted above, the evidence could have supported a reasonable finding by the jury that the other two elements of negligent misrepresentation, that is, false statement and detrimental loss, were proven by a fair preponderance of the evidence. As the plaintiffs assert in their brief, in referring to Paragraph #9 of the Fifth Count of their amended complaint, the concept of negligence has been in the case since its inception. Contrary to the defendant's argument, the jury was clearly instructed that the sole cause of action to which it should apply the facts as found by them was negligent misrepresentation; they were told, based on the claims of the parties, the manner in which they should do so; and they were also provided with the specific elements of that particular cause of action. They were given none of those instructions traditionally given in a case based on ordinary common-law negligence. As detailed above, given the facts that the jury could have reasonably found vis-a-vis a cause of action based on negligent misrepresentation, there was no confusion, on the issue of liability, as to its duty relative to the cause of action pleaded by the plaintiffs. "[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible." Wasko v. Farley, 108 Conn.App. 156, 169 (2008). (Emphasis added.) The evidence provided a sufficient foundation for the challenged instruction. In this court's view, justice and fairness mandated that it be given.
C. As To Damages 1. Plaintiffs' Exhibit #10
Since in its verdict form, the jury chose to specifically award the plaintiffs, "$41,000 as outlined in plaintiffs' Exhibit 10 . . ." the court will attach hereto that exhibit as Appendix III. During the trial, the court admitted the "furniture package" as a full exhibit, over the strenuous objections of all of the defendants. The arguments of counsel and the court's ruling are found in the transcript of the testimony of Thomas Bukowski, pages 53-58. Naturally, the arguments took place while the jury was excused for an extended lunch.
Editor's Note: Appendix II has not been reproduced herein.
In support of the offer, plaintiffs' counsel referred to the portions of the testimony of Thomas Bukowski describing the types of furnishings and other personal property that was located at the Florida condominium at the time the hurricane hit and that the furniture package would "fairly replace" what was lost. Counsel did note that some of the items were fixtures, but insisted that the inclusion of the unredacted exhibit would not confuse the jury. Safeco's attorney countered that no value was assigned to any item [neither on the list nor by testimony] and that no basis existed [age of the furnishings] to consider depreciation. Counsel also referenced the fixtures and fees that were not itemized and could not be part of any insurance coverage claim. Counsel for Cianciolo and New England added that, without testimony as to the specific description of what was lost [which Thomas Bukowski could not offer]; without some testimony as to whether the items contained in the exhibit were a "replacement or improvement;" and without testimony as to the reasonable value of each of the items, the plaintiffs could not sustain their "threshold burden" of proving damages, as they were unable to provide the jury with a foundation upon which an award could be made.
This court [pages 55-57] cautiously allowed the admission of the furniture package as a full exhibit, finding that some foundation was in evidence from photographs ( Plaintiffs' 7A) showing some of the rooms and items that were subsequently destroyed; Thomas Bukowski's testimony describing some of the items; his testimony that the items were at least five years old; and his testimony that they were basic furnishings for a condominium. Also, the court expressed its confidence that, given the constant bombardment of commercials advertising furniture and the availability at many hotel art shows of cheap artwork, i.e., the kind that and owner would place in a rented condominium, the jury had some reasonable basis for assigning values to each item on the list. The court noted the problem posed by the inclusion of some fixtures and the unspecified costs at the bottom of the exhibit, but felt that the jurors would be able to excise those items from any damage award when, as the court hoped, they reviewed the furniture package item-by-item and assigned a reasonable value to each evidentially legitimate item. In what this court deemed to be a close call, the court reasoned that what had been presented in the testimony and portrayed in the photographs, coupled with the jury's general knowledge as to furniture values and decorative artwork was sufficient to permit the jury from engaging in "pure speculation." The court, in admitting the exhibit, stated that "great leeway" would be afforded to defense counsel during cross examination, including highlighting for the jury the "glaring omissions" pointed out by counsel in their opposition to admitting the exhibit. The court also anticipated that Mrs. Bukowski would during her testimony fill-in some of the glaring omissions from that of her husband. She did not do so!
2. Testimony of the Plaintiffs
During her brief testimony, Joyce Bukowski, Thomas' spouse, confirmed that all of the furnishings in the Florida condominium had to be replaced and that, based on her experience over the years in purchasing furniture, she thought that the furniture package was a "decent price" and an acceptable alternative to purchasing the items piece-by-piece. She offered that she would have to spend two months in Florida in order for her to personally furnish all of the rooms. Contrary to this court's expectations, she did not describe the items that were in the unit when the hurricane hit; she did not opine as to their value; she did not estimate their age; and she was not asked to attempt an itemization as to the reasonable value of the items listed in the furniture package.
During the portion of his testimony given after the admission of the furniture package, Thomas Bukowski testified that at the time he purchased the three bedroom, 1700-1800 square foot condominium in 1999, the furniture that was included, un-itemized, in the purchase price was "used." Thus, he was unable to estimate the age of the personal property beyond five years. When asked about the value of the items shown in the photograph ( Plaintiffs' 7A), his response was: "I'm not good at prices!" Transcript, page 34. He went on to describe some of the items that were destroyed that included, "bureaus, tables, dressers, weird lamps, couches, loveseat, plants and kitchen table." He did confirm that he paid $1,633.46, to replace the appliances. Plaintiffs' Exhibit #12. He admitted that certain of the items listed in the furniture package, such as light fixtures and blinds, were "not personal property." Transcript, page 60. He had previously underlined several items on the list of furnishings, including a chandelier, woven blind-dining, shutter blind-kitchen, shower curtain, minor, vanity and wallcovering-bathroom, some of which he did not intend to pay for, some of which were fixtures and some that were not part of his particular condominium unit due to the location of said unit. He admitted that all of those items, whatever their value, would not be called "personal property that [he] would need a claim for under [his] insurance policy," assuming of course, that such coverage was provided. Transcript, page 109-11. He further admitted that he was unable to assign a value to any of the items listed on the furniture package, including those costs listed at the bottom thereof Transcript, page 111-12. As noted earlier herein and as clearly shown on the exhibit, the $41,000 cost of the so-called furniture package included unspecified costs for "delivery, installation, purchasing, design and administrative fees." Bukowski agreed that those costs, whatever they may be, were not costs that would be paid for by an insurance company as part of a personal property loss under an insurance policy that provided such coverage. He opined that he thought that $41,000 was a "high price" for the package offered. Transcript, page 112. He later stated that the package was, despite the cost, "a cheaper way to go." Transcript, page 121.
3. The Jury's Verdict
In light of Thomas Bukowski's testimony, in which he clearly confirmed that many of the items listed in the furniture package, including the litany of costs listed at the bottom, would not be items and costs that could be legitimately recovered as part of an insurance claim for the loss of personal property under any insurance policy that provided such coverage, the court is compelled to agree with the defendants that the jury verdict rendered in this case is clearly against the weight of the uncontroverted evidence and is contrary to the court's instruction to the jury that it must award damages that are fair, just reasonable and based upon the evidence.
The plaintiffs must concede that it is certainly, at the very least, coincidental, that the jury decided to award to the plaintiffs the full amount of the furniture package, that is, apart from the improper award of unspecified attorneys fees. Therefore, one is justified in suspecting that the jury ignored the clear evidence (Thomas Bukowski's testimony) of those items and costs that could not legitimately be included in their verdict. The plaintiffs argue that the jury could have taken the cost of the appliances ($1,633.46) into consideration and utilized that cost to set off the illegitimate costs and items referred to in Plaintiff's' Exhibit #10. The language that the jury chose to insert on the verdict form, however, negates that argument, as the jury foreperson wrote, "$41,000 as outlined on Plaintiffs' Exhibit 10." In this court's view, that indicated quite clearly that the jury intended that it's award include all the items on the referenced exhibit, including those items that, based on the uncontroverted evidence, the plaintiffs could not legally recover as part of an insurance claim under personal property coverage, a fact, that was confirmed by Thomas Bukowski.
As noted earlier herein, this court made a "close call" in admitting the furniture package into evidence. In doing so, the court placed trust and confidence in the jury's ability to assign reasonable values to each item in the package (furniture, lamps, bedding, carpeting, etc.) that constituted personal property that would replace that personal property lost in the hurricane. The jury did not do what the court trusted it to do; quite the contrary, the jurors ignored the evidence, ignored the court's instruction on damages and included in their award damages for items specifically not claimed by the plaintiffs. In hindsight, it most probably was error for this court to admit the furniture package as a full exhibit, absent an evidential foundation that included a description of the destroyed furnishings, an estimate of their cost, testimony as to the age and condition of the destroyed items and some itemized estimate of the furnishings and costs listed in the furniture package. That error is all the more apparent when one reviews the instruction that the court gave to the jury on damages. The instruction specifically told them that they had to consider the value of the property destroyed, the original cost, depreciation and replacement cost. The evidence provided them with little or no foundation to which those instructions were to apply. The jury's apparent confusion caused it, perhaps, to choose an easier path and to award all of the items contained in Plaintiffs' Exhibit #10, an award that, in this court's view, is contrary to the evidence and fueled by that confusion. As noted, in considering a motion to set aside a verdict, this court is obligated to view the evidence in a light most favorable to the sustaining of the verdict. Gaudio v. Griffen Health Services, 249 Conn. 523, 534 (1999). In doing so, however, the court is compelled to set aside the verdict as a consequence of the jury's ignoring the clear and uncontroverted evidence in fashioning its verdict. Palomba v. Gray, 208 Conn. 21, 23-24 (1988). The verdict cannot stand and must, therefore, be set aside by this court.
VI. CONCLUSION AND ORDER
As there was ample evidence to justify the jury's finding that Cianciolo and New England were liable to the plaintiffs for a pecuniary loss as a consequence of Cianciolo's negligent misrepresentation, and as there was some legitimate evidence, that is, the cost of the appliances, of that loss, the court will not enter judgment in favor of said defendants. The court will, however, order that the verdict be set aside and will order a new trial.