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October 31, 2013

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 31, 2013

Worker suffered atrophy to hands caused by ongoing diabetes, but then at a later job with UPS suffered a work-related hand injury.  The company was apportioned only 10% liability of his 40% disability by the Board due to the workers existing disease ….consistent with the surgeon’s opinion of allocation. On appeal the Court cited the current law under the Deschenes rule as: ‘‘[A]pportionment . . . of permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is non-occupational, and the other that is [work related]; and (2) the conditions of the claimant’s occupation have no influence on the development of the non-occupational disease.  In Deschenes, the worker suffered lung impairment from both smoking and from asbestos exposure at work.  I think ignoring the basic logic of the Deschenes rule, the Appellate Court split hairs and said the evidence in this case shows that the impairment caused by the plaintiff’s diabetic neuropathy was a previous disability, and because it was, it could not have also been a concurrently developing disease process. As a result, it would not satisfy the first prong of the Deschenes rule.  The majority held that a previous disability cannot be a concurrent condition allowing the employer to apportion the claim.  Would the outcome have been different had the attorney asked the doctor one key question:  Is the disability caused by the diabetes an ongoing disease that is getting worse over time during the same time the workers suffered the accident at work?  A yes to this question might have changed everything.  The Dissent however felt that the answer to that question was already obviously YES from the file…..and even if the natural disease was not progressing at the time of the work injury…....that does not mean is wasn’t concurrent.

[GOOD STUFF GOOD STUFF.  Wow - I guess someone did not read their contract very carefully.   New Mexico Medical group bought software licenses and computer hardware and applicable support services from a CT company and it never worked as promised to maintain patient files and obtain insurance reimbursements.  They sued in CT and won a judgment for breach of contract, warranty, negligent misrepresentation and CUTPA, totaling greater than $800,000.   $700,000 of that was CUTPA damages on the basis that the seller knew the product was not fully developed and the buyer wasted a lot of time on training and retraining.  On appeal, the first holding as a matter of first impression in CT, the UCC 42a-2-101 does apply to the sale of software licenses which should be deemed a transaction of goods. Further where, as here, the provision of services makes it a hybrid agreement but the major component is still goods (the licenses and the hardware), it is still a sale of goods governed by the UCC.  The trial court erred by paying only lip service to the UCC but analyzed whether the contract had been breached under the common law. UCC Section 2-607 allowing the seller reasonable time after notice to cure a breach was ignored by the trial judge.  Plaintiff never provided such notice here and so cannot recover.  The contract further required all notices to be in writing and that was never followed.

The contract’s entirety clause was also ignored with the finding that representations from the salesmen constituted independent warranties.  The contract’s warranty and damage limitation provisions (in bold print and caps) were also improperly ignored by the trial court which found they were unreasonable and unenforceable against an unsophisticated buyer of software….. when in fact….. the contract was not ambiguous and was between two sophisticated commercial parties, both represented by counsel, and so there was no room to deviate from its terms.  [This clause seems to come from Horton Hears A Who: We conclude the parties meant what they said, and said what they meant.] 

UCC 2-213 along with the contract’s terms were further ignored as to how express warranties can be created and limited.  Under the UCC, neither oral parol statements nor course of conduct can vary the express contract terms. The provisions of UCC 2-316(2) on disclaimers of implied warranties was properly followed by the contract but also ignored by the trial judge. 

Next the finding of negligent misrepresentation was also reversed with a ruling of first impression.  When a contract contains an entirety & merger clause and is the basis for the claim, there can be no independent claim for negligent misrepresentation for statements made outside the contract.

On a third issue of first impression the Court threw out the CUTPA claim as the sale of goods or services did not occur within this state.  It did not matter that the contract had a CT choice of law provision.  The statute simply did not apply.  But watch out you contract drafters…..They said it was a “partial choice of law” provision by only stating  CT law shall apply to the interpretation of the contract….and did not state what law would apply to non-contract disputes.  After an exhaustive choice of law analysis, the decision concludes that New Mexico law would apply to any non-contract tort claims because the injury occurred in that State.  So in theory, the plaintiff might have tried to assert a New Mexico unfair trade practices claim here in CT.  But the outcome here might have been different had the contract provided CT law shall applied to any dispute between the parties.  [Sounds like they would have allowed a CUTPA claim to proceed with a broad choice of law provision but that makes no sense when they had already stated earlier that the statute would not apply as no sales occurred here in CT.]

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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