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Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted October 28, 2013

Although this was a UM/UIM case, it could have important precedent in other statute of limitation contexts.  The plaintiffs commenced their UIM claim against their insurance company after the three-year statute of limitations, but had made written demand for arbitration within 180 days of receiving the policy limits from the tortfeasor’s insurance company.  Under C.G.S. 38a-336(g)(1), such a demand for arbitration should have tolled the statute of limitations.  The Trial Court granted, and the Appellate Court affirmed, summary judgment for the insurance company, however, on the grounds that the statute of limitations had passed, and the plaintiffs’ papers in opposition to summary judgment did not clearly establish that this was a UIM case, as opposed to a UM case, where there is no tolling of the statute of limitations. 

The Supreme Court reversed the grant of summary judgment.  First, it held that there was a disputed question of fact whether or not this was a UIM or UM case, because the insurance company’s own pleadings admitted that dispute existed.  Then, moving on to the applicable statute of limitations, the Supreme Court held that the Trial Court improperly put the burden of proof upon the plaintiff to establish that this was a UIM case, for which an arbitration demand had been made, thus triggering a tolling of the statute of limitations.  The majority admitted that normally, a defendant who pleads a statute of limitations as a special defense, meets their burden of proof by simply showing that the lawsuit was commenced beyond the (three year) time limit, and then the burden would switch to the plaintiff to prove by way of Matter in Avoidance why a tolling had occurred. 

As a matter of first impression, however, the Court held that when a plaintiff has pled a statute (or other cause of action) that automatically implicates a tolling of the statute of limitations, the defendant has the burden to show both that the statutory timeframe has expired, and that the plaintiff cannot take advantage of the tolling in the statute that they had pled in their complaint. 

Justices McDonald and Zarella dissented vigorously, arguing that proving a tolling of the statute of limitations has always been a burden of the plaintiff, and that there was no evidence the Legislature ever intended to change that for UM/UIM cases. 

[Editor’s Note: Query, if plaintiffs affirmatively plead a tolling of the statute of limitations in their complaint by virtue of common law, such as course of conduct etc., does the burden now switch to the defendant to disprove the common law tolling in their motion for summary judgment?]

The plaintiff in this medical malpractice action presented a gastroenterologist expert witness to establish that the treating physician should have realized that the insertion of a feeding tube perforated the patient’s bowels, causing an infection and eventual death.  The defendant moved to exclude the expert, claiming that the perforation would have required surgery to repair, and the plaintiff had not presented the expert testimony of a surgeon to establish that surgery would have been successful.  The Trial Court granted the Motion in Limine, and thereafter granted summary judgment to the defendant. The Trial Court said that the expert could only testify that an infection can lead to death, but that a surgeon would need to testify that upon discovery, the damage could have been repaired with a good chance of recovery. 

The Supreme Court reversed, noting that while the Trial Court has wide discretion on the qualifications of an expert witness, its decision will be reversed when there is clear error.  The testimony of the plaintiff’s expert should not have been precluded as to causation.  The Legislature has only set forth the qualifications of an expert needed to establish the standard of care.  It has not set forth legislative requirements for the qualifications of an expert witness to establish causation testimony in medical malpractice cases.  This is because medical specialties overlap, and therefore it is left to the discretion of the Trial Court to determine whether the witness is qualified to testify about a particular condition.

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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