Opinion
No. CV-02-0080150S
July 23, 2004
MEMORANDUM OF DECISION
The plaintiff, Penelope Smith (Smith), has brought this action seeking a writ of mandamus, a declaratory judgment and damages as a third-party beneficiary. She claims that as the widow of Daniel Smith, a retired Milford police officer, she is entitled to receive certain supplemental pension benefits that provide incremental increases (the incremental increases) pursuant to the terms of the pension agreement applicable to her deceased husband The defendants, the Pension and Retirement Board of the City of Milford and the City of Milford (City), maintain that Smith is not covered by the clause providing for the incremental increases because she was not married to Daniel Smith at the time of his retirement.
The City has admitted the following allegations of Smith's complaint: Daniel Smith was employed as a full-time paid police officer with the City of Milford Police Department from November 11, 1957 until his retirement on a service-connected disability pension effective February 22, 1985. Daniel Smith died on September 13, 2000. At the time of his retirement, his employment was governed by a collective bargaining agreement.
The evidence before the court establishes the following facts: Smith married Daniel Smith on February 14, 1993 (exhibit 6). She has not remarried since his death. At the time she married Daniel Smith, he was receiving the incremental increases provided for under the provisions of a pension agreement (exhibit 3) (the pension agreement) incorporated by reference into the governing collective bargaining agreement (exhibit 2). After his death, the City refused to pay the incremental increases to Smith, although she does receive monthly survivor benefits. The City only pays the incremental increases if a widow was married to an officer on the date of his retirement.
Exhibit 2 is entitled "Agreement between the City of Milford and Milford Police Union Local #899, July 1, 1982 — June 30, 1984, American Federation of State, County and Municipal Employees, AFL-CIO and Council 15, AFL-CIO." The parties agree that it was the operative contract on the date of Daniel Smith's retirement. Section VII of the contract governing pensions provides as follows: "Members of the Police Department will receive Pensions in accordance with the Pension Agreement between the Union and the City dated April 5, 1979, as extended." The Pension Agreement was introduced as exhibit 3.
I. CT Page 11309
The sole issue before the court is the interpretation of the clause in the pension agreement that provides for the incremental increases (the escalator clause). It provides as follows:
Each retired employee of the Milford Police Department . . . shall receive . . . fifty (50) percent of the maximum amount of each salary increase granted to employees of the classification held by such retiree as the time of his retirement, and each spouse of the Police Department employee, active or retired, shall receive . . . fifty (50) percent of the maximum amount of each salary increase granted to employees of the classification held by such widow's . . . husband . . . at the time of his death . . . or retirement as the case may be.
The pertinent language is italicized.
Smith maintains the language is clear and unambiguous and provides that any widow of a retired police officer covered by the escalator clause is entitled to the same incremental increase benefit he was receiving at the time of his retirement. The City maintains that the escalator clause is unclear and ambiguous and does not apply to widows and widowers if they married a former employee during his or her retirement rather than during active service as a police employee. The court agrees with Smith.
The City maintains that the use of the phrase "each spouse of the Police Department employee, active or retired," in one portion of the clause and the use of the words "widows or widowers" in another portion of the clause creates an ambiguity because the words are not interchangeable. The City also maintains that the words "active or retired" limit eligibility for the supplemental pension benefits only to a spouse married to a police employee on the date of his or her retirement. The City's reading of the language of the clause in tortured and untenable.
The City's interpretation of the language belies its claim. The City states in its brief that the term "each spouse of a Police Department employee, active or retired" could mean either: a "widow or widower of any employee or retiree" or the "spouse of an employee who will receive the benefit at the time of the officer's death, whether the officer is active or retired." The court can discern no meaningful difference between these two interpretations.
For example, under the City's reading of the clause, the ex-spouse of retired police employee could claim entitlement to the escalator clause as long as the employee and the spouse were married at the time of retirement.
Under . . . well established principles [of contract interpretation], [a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.
[T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous. By contrast, language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion.
Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract. Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument. (Internal quotation marks omitted; internal citations omitted.)
Poole v. Waterbury, 266 Conn. 68, 88-89, 831 A.2d 211 (2003).
The language of the escalator clause is clear and unambiguous and susceptible to only one reasonable interpretation. The section begins, clearly enough, with a provision for incremental increases for living retirees. The City does not challenge this language. The clause then goes on to provide for incremental increases to spouses of employees, both active and retired. The word "spouse," as used in the clause, must be read in light of the words "widows or widowers" to mean surviving spouses of police employees, whether the employee is active or has retired, because spouses of living police officers and living retirees are not entitled to any pension benefits, as the City concedes.
Thus, the escalator clause provides for a supplemental pension benefit, consisting of incremental increases, to surviving spouses under two different circumstances: the first circumstance is when the police employee is still in active status at the time of death and the second circumstance is when the police employee is retired at the time of death. The words "active or retired" delineate those two circumstances and nothing more. Under both circumstances, the escalator clause provides that the spouse "shall receive . . . fifty (50) percent of the maximum amount of each salary increase granted to the employees of the classification held by such widow's . . . husband . . . at the time of his . . . death or retirement as the case may be." The escalator clause does not restrict or qualify the words "spouse," "widow" or "widower" to an individual who was married to the police employee prior to the employee's retirement. Cf. Gonsalves v. West Haven, 232 Conn. 17, 19, n. 2, 653 A.2d 156 (1995) (interpreting a police employee pension agreement which qualified the term "widow" in precisely that manner); Heise v. Hartford, 127 Conn. 359, 361, 17 A.2d 8 (1940) (interpreting a police pension agreement that defined a "widow" as "the surviving spouse of such member who . . . shall have been married to him prior to his retirement from said department and who shall be living with him as his wife at the time of his death").
There is no question that Smith was the spouse of a retired police employee at the time of his death. Under the clear terms of the escalator clause, she is entitled to receive the incremental increases provided for widows under the pension agreement.
II.
Smith has sought relief in three forms: she has moved for a writ of mandamus and a declaratory judgment and she has also made a claim for damages as a third-party beneficiary to the pension agreement.
A.
Smith has moved for a writ of mandamus directing the defendants to pay her the incremental increases provided by the escalator clause. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).
Under the Charter of the City of Milford, Article IV, § 5, the defendant Pension and Retirement Board (the board) is "entrusted with the management of the pension and retirement system of the city." (Exhibit 1). Since the pension agreement requires payment of the incremental increases to Smith, the board has a duty to her under the agreement and is required to approve and process those payments. The board is the sole entity with authority to process such payments and Smith has no other recourse but to obtain approval of the payments from the board. Accordingly, she is entitled to a writ of mandamus against the board and the board is directed forthwith to approve and process her application for incremental increases pursuant to the terms of section 3 of the pension agreement, retroactive to July 1, 2001.
B.
Smith has moved for a declaratory judgment pursuant to General Statutes § 52-29(a) and Practice Book § 17-55. "The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and [the] Practice Book is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties . . . Statutes and rules relating to the remedy of declaratory judgments are given a liberal construction to effectuate their purposes." (Internal quotation marks omitted; internal citations omitted.) Bombero v. Planning Zoning Commission, 40 Conn. App. 75, 78-79, 669 A.2d 598 (1996). The court declares that Penelope Smith is the "spouse of the police employee . . . retired" (Officer Daniel Smith) who "shall receive . . . fifty (50) percent of the maximum amount of each salary increase granted to employees of the classification held by such widow's . . . husband" "at the time of his retirement" under section 3 of the pension agreement.
C.
Smith maintains that it is undisputed that she is a third-party beneficiary of the pension agreement, relying on a statement made by the court (Cremins, J.) in its ruling denying the City's motion to dismiss. The City has not disputed that Smith is a third-party beneficiary of the pension agreement. Daniel Smith died on September 13, 2000. The first incremental increase to which Smith would have been entitled as his widow was effective July 1, 2001. Thereafter, she was entitled to the incremental increases effective July 1, 2002 and July 1, 2003. (Exhibit 5.) The evidence, however, is insufficient for the court to properly calculate the precise amount of the incremental increases which would amount to damages for breach of contract and the court will not rely on the calculations contained in the plaintiff's trial brief. Furthermore, any award of damages for breach of contract would amount to a double recovery, as the court has directed the board to approve and process Smith's application for incremental increases under the pension agreement retroactive to July 1, 2001.
The pension agreement provides that the incremental increase payments "shall be cumulative." However, there was no evidence presented to the court as to manner in which the payments accumulate. The plaintiff's brief suggests a calculation based on a number of cumulative weeks. The court cannot rely on this calculation because it is not evidence in the case.
III.
For the foregoing reasons, judgment shall enter as follows: In favor of the plaintiff on the first count of the complaint seeking a writ of mandamus, in favor of the plaintiff on the second count of the complaint seeking a declaratory judgment and against the plaintiff on the third count of the complaint.
LINDA K. LAGER, JUDGE