ESSEX INSURANCE COMPANY v. WILLIAM KRAMER & ASSOCIATES, LLC
(SC 20130)
Supreme Court of Connecticut
Argued October 16, 2018—officially released April 23, 2019
Robinson, C. J., and Palmer, McDonald, D‘Auria, Mullins, Kahn and Ecker, Js.
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Syllabus
The plaintiff insurance company appealed to the United States Court of Appeals for the Second Circuit from the judgment, rendered by the United States District Court for the District of Connecticut, for the defendant claims adjuster after the District Court set aside the jury‘s verdict in favor of the plaintiff on the ground that there was insufficient evidence to support the jury‘s finding that a continuing course of conduct tolled the statutory (
1. The evidence was not legally sufficient to establish that the defendant had a continuing duty to the plaintiff on the basis of a special relationship between the parties that continued until at least three years before the plaintiff commenced the present action in October, 2013, thereby tolling the statute of limitations, as none of the defendant‘s actions after the plaintiff issued the final claim payment in 2007 reasonably could be considered further performance of any of the adjustment services the parties had agreed on and, thus, a further continuation of the fiduciary relationship that existed prior to that time: the defendant closed its file on the property shortly after the plaintiff issued the final claim payment, signifying that it had completed its performance of the adjustment services for which it had been hired, any actions by the defendant thereafter, including communications, were not adjustment services, and the defendant‘s acts in billing to the plaintiff M‘s time spent in connection with the bank‘s action and using the plaintiff‘s attorney reflected a business relationship but did not bear the hallmarks of agency generally or a fiduciary relationship specifically; moreover, the plaintiff could not prevail on its claim that the defendant had a continuing duty to warn of or correct a mistake after the termination of the special relationship, as there was no basis on which the jury reasonably could have concluded that the defendant had actual knowledge of the bank‘s mortgage on the property before 2012, when M discovered the schedule showing that the bank held a mortgage on the property, as both O and M testified that they had no recollection of ever having seen the schedule during the relevant time frame, and the plaintiff‘s theory of the case was premised on the defendant‘s constructive knowledge, not its actual knowledge, of the bank‘s mortgage.
2. The evidence adduced at trial was not legally sufficient to support a finding by the jury that the statute of limitations was tolled through at least October, 2010, under the continuing course of conduct doctrine on the basis of later wrongful conduct relating to the defendant‘s prior omission: this court rejected the plaintiff‘s claim that the defendant‘s ongoing failure to disclose the existence of the bank‘s mortgage on the property constituted later wrongful conduct that continued until M‘s 2012 disclosure of the schedule, as the defendant did not have actual knowledge of that schedule until 2012, and the plaintiff did not identify any other action by the defendant that constituted later wrоngful conduct; moreover, this court declined to recognize a continuing duty of the defendant to investigate as long as any business relationship existed between the parties, as an agent‘s duty to use reasonable efforts to give the principal information that is relevant to the affairs entrusted to the agent generally ends with the termination of the agency relationship.
Procedural History
Action to recover damages for the alleged negligence of the defendant, and for other relief, brought to the United States District Court for the District of Connecticut, and tried to the jury before Shea, J.; verdict and judgment for the plaintiff; thereafter, the court granted the defendant‘s motion for judgment as a matter of law and rendered an amended judgment thereon, from which the plaintiff appealed to the United States Court of Appeals for the Second Circuit, Leval, Raggi and Lohier, Js., which certified to this court a question of law regarding whether the evidence was sufficient to support the jury‘s finding that a continuing course of conduct tolled the statute of limitations.
Mary Massaron, pro hac vice, with whom was Christopher L. Jefford, for the appellant (plaintiff).
Richard A. Simpson, pro hac vice, with whom, was Christopher P. Kriesen, for the appellee (defendant).
Opinion
The District Court‘s decision set forth the following facts that the jury reasonably could have found, which, for context, we supplement with uncontested facts reflected in the record certified to this court. In 2005, a hurricane damaged properties in Florida, including four commercial properties owned by IDM Management, Inc. The property directly relevant to the present action is an apartment complex, The Villas at Lauderhill, LLC, known as the “Villas.” IDM had several layers of insurance to protect itself against such a loss for its properties: an initial layer of coverage from Aspen Specialty Insurance Company; an excess layer from the plaintiff; and an additional excess layer from a third insurer.2 The plaintiff received notice from IDM that the loss might reach the plaintiff‘s layer of coverage.
After Aspen hired the defendant to adjust the loss to the IDM properties for its initial layer of coverage, the plaintiff agreed to hire the defendant as its independent adjuster for the IDM properties. It is customary industry practice for excess layer insurers to engage the same independent adjuster as the initial layer insurer to allоw all insurers to share the information and work product generated in the original adjustment.
The plaintiff hired the defendant to perform a “‘full adjustment‘” on the properties. Although the parties did not execute a written contract, it was understood that a full adjustment included inspecting the property, estimating the value of the loss, working with IDM to agree to an amount of loss, reviewing all coverage aspects of the plaintiff‘s policy, identifying any potential coverage issues, and reporting all elements associated with the investigation and the claim measuring process. Significantly, for purposes of the present case, it also included identifying any mortgages on the insured property. The need to identify such mortgages stemmed from the fact that the mortgagee could have an interest in the insurance proceeds.
Two of the defendant‘s employees were involved with the adjustment of IDM‘s
In April, 2006, IDM‘s retail broker sent a letter to the defendant‘s Palm Harbor office addressed to Oberpriller, requesting reissuance of a check from Aspen for one of IDM‘s properties because the banks listed as payees were incorrect. The letter provided the names of the correct payees and noted, “I have also enclosed a copy of the mortgagees showing Wachovia Securities for Park Apartments for your files.”
The enclosed document, captioned “schedule of mortgagees,” did not list mortgagees for just Park Apartments, but for all four IDM properties. Intervest National Bank was listed last as mortgagee for the Villas. The letter from IDM‘s retail broker and its accompanying schedule of mortgagees were placed in a file in either the Palm Harbor or Tampa office (Aspen file).3
Even though the defendant had the mortgagee schedule in its Aspen file and was obligated to share information obtained while working for Aspen, Oberpriller and Martin sent periodic status reports to the plaintiff indicating that there were mortgages on the other three IDM properties but that there was no mortgage on the Villas.4 Just before the plaintiff issued its final claim payment сheck to IDM, the plaintiff‘s executive claims examiner contacted Oberpriller and Martin specifically to inquire whether there was a mortgage on the Villas. They replied that they had not received a response from the policyholder in their most recent inquiry, but there was “no indication” that there was a mortgage on the Villas. Because the plaintiff‘s executive claims examiner was not licensed in Florida as an insurance adjuster, he could not contact IDM directly on this matter. As a result, when the plaintiff issued the final claim payment check to IDM on March 19, 2007, exhausting IDM‘s policy limit, it did not list Intervest as a payee or inform Intervest that it was going to make its final claim payment.
The defendant closed its file on the Villas claim on May 8, 2007. At some point around that date, Oberpriller delivered his working file on the IDM properties, consisting of two boxes of documents, to the defendant‘s Palm Harbor office.
After the plaintiff issued the final claim check, there were three instances of contact between the defendant and the plaintiff relating to the Villas. First, in August or September, 2007, Martin contacted the plaintiff to inform it that the insurance company holding the final excess layer of
Second, in 2009, after Intervest, the mortgagee on the Villas, brought an action against third parties concerning their failure to protect its mortgage interest (Intervest action),5 Martin informed the plaintiff that Intervest had served the defendant with a subpoena, demanding production of the defendant‘s files relating to the Villas. Martin did so because he believed that the defendant had an obligation to inform the plaintiff if an issue came up that could affect the plaintiff. The plaintiff offered to assist with the defendant‘s production responsibility and had its attorney who had assisted in the loss adjustment process open her files to do so. The plaintiff also offered to cover the defendant‘s expenses related to the Intervest action.
In response to the 2009 subpoena, the defendant produced the two boxes of documents that Oberpriller had returned to the office after he completed the adjustment. It did not produce the Aspen file containing the mortgagee schedule at that time.
In December, 2010, Intervest filed an amended complaint in the Intervest action, adding the plaintiff as a defendant; civil process was served on the plaintiff in January, 2011. The amended complaint alleged, among other things, that the plaintiff knew that Intervest was a mortgagee on the Villas and should have paid insurance proceeds to Intervest.
The third contact between the parties occurred in 2012, when Martin informed the plaintiff that he was being deposed in the Intervest action. Thereafter, while Martin was preparing for his deposition, his secretary came upon the Aspen file when the offices were searched again, “just to be diligent.”6 Martin, in turn, disclosed to the plaintiff the existence of the mortgagee schedule in that file. The plaintiff‘s attorney prepared Martin for, and attended, the deposition. Martin produced the schedule to Intervest at his deposition. Thereafter, the defendant billed the plaintiff for the time that Martin spent at his deposition because, according to Martin, the defendant still considered the plaintiff its “client” and continued to have an “ongoing relationship” with the plaintiff.
On the basis of the discovery of the mortgage schedule in the Aspen file and the concern that the defendant‘s knowledge of this information could be imputed to it, the plaintiff reevaluated its litigation strategy. Ultimately, the plaintiff settled Intervest‘s claims against it for $1 million. By that time, the plaintiff had incurred approximately $250,000 in legal fees, between its own costs and those incurred aiding the defendant.
The record reveals the following additional procedural history. On October 21, 2013, the plaintiff instituted the present negligence action against the defendant. The defendant contended that the action
The defendant renewed a prior motion for judgment as a matter of law, previously reserved by the court, arguing that no reasonable jury could find that the continuing course of conduct doctrine applied under the facts of the case. The District Court agreed, set aside the jury‘s verdict, and rendered judgment for the defendant.
The plaintiff appealed to the Second Circuit. That court agreed with an observation made by the District Court that Connecticut law did not provide clear guidance in this context, but it questioned the District Court‘s application of the case law to the facts. With the parties’ agreement, the Second Circuit sought our guidance by way of certification on the following ques-tion: “Is the trial evidence legally sufficient to support the jury‘s finding that the statute of limitations was tolled at least through October 21, 2010, [three years before the action was commenced and thus] rendering the [plaintiff‘s] claim timely?” Evanston Ins. Co. v. William Kramer & Associates, LLC, supra, 890 F.3d 51. We agree with the District Court‘s determination that the evidence was not legally sufficient.
Section 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” (Emphasis added.) This court has explained that “the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. . . . The date of the act or omission complained of is the date when the . . . conduct of the defendant occurs. . . .” (Citation omitted; internal quotation marks omitted.) Certain Underwriters at Lloyd‘s, London v. Cooperman, 289 Conn. 383, 408, 957 A.2d 836 (2008); see also Rosato v. Mascardo, 82 Conn. App. 396, 407, 844 A.2d 893 (2004) (characterizing
However, the continuing course of conduct doctrine recognizes that the “act” or “omission” that commences the limitation period may not be discrete and attributable to a fixed point in time. “[T]he doctrine is generally applicable under circumstances
“[T]o support a finding of a continuing course of conduct . . . there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Emphasis added; internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 835, 95 A.3d 1063 (2014); accord Connell v. Colwell, 214 Conn. 242, 255, 571 A.2d 116 (1990); see also Martinelli v. Fusi, supra, 290 Conn. 357 (plaintiff must establish that “the defendant: [1] committed an initial wrong upon the plaintiff; [2] owed a continuing duty to the plaintiff that was related to the alleged original wrong; and [3] continually breached that duty” [internal quotation marks omitted]).
In the present case, the plaintiff claims that the defendant engaged in a continuing course of conduct that tolled the limitation period until the defendant produced the mortgagee schedule from the Aspen file in September, 2012. It contends that the defendant breached a continuing duty to disclose the existence of the mortgage arising from either the special relationship between the parties or the defendant‘s later wrongful conduct in continuing to fail to make this disclosure. The District Court instructed the jury regarding continuing duty under both a theory of a special relationship and a theory of later wrongful conduct. The interrogatories did not ask the jury to specify which theory the evidence supported. Therefore, we must consider whether the evidence was legally sufficient under either theory to establish that the defendant‘s duty to disclose the mortgage remained in existence through at least October 21, 2010. See MacDermid, Inc. v. Leonetti, 328 Conn. 726, 752, 183 A.3d 611 (2018) (applying general verdict rule).
I
We begin with the special relationship theory. The plaintiff advances two grounds for prevailing on this theory. We consider each in turn.
A
The jury was instructed that, as an adjuster hired by the plaintiff, the defendant was the plaintiff‘s agent and therefore had a special relationship of trust with the plaintiff. The question presented to the jury, therefore, was whether this special relationship continued until at least three years before the action was commenced in October, 2013. Although the defendant challenged at trial the instruction that a special relationship of trust had been created, it abandoned that claim on appeal. Therefore, our analysis is limited to the question presented to the jury.
As the federal courts noted in this case, there is a dearth of Connecticut appellate
The doctrines differ in certain important respects but “share similar supporting rationales.” Martinelli v. Fusi, supra, 290 Conn. 356; see Sean O‘Kane A.I.A. Architect, P.C. v. Puljic, 148 Conn. App. 728, 734, 87 A.3d 1124 (2014) (doctrines “present similar solutions to similar problems“). The primary difference is that the continuous treatment doctrine focuses on the plaintiff‘s reasonable expectation that the treatment for an existing condition will be ongoing, whereas the continuing course of conduct doctrine is available regardless of the plaintiff‘s knowledge of any reason to seek further treatment, as long as the defendant had reason to know that the plaintiff required ongoing treatment or monitoring for a particular condition. Martinelli v. Fusi, supra, 356-57. Thus, insofar as continuous treatment cases weigh various factors to assess the plaintiff‘s subjective expectations, we have declined to extend that approach to other tolling doctrines. See DeLeo v. Nusbaum, 263 Conn. 588, 598-99, 821 A.2d 744 (2003) (determining that it is not appropriate to weigh such factors to determine whether legal representation is ongoing, and expressing concern that weighing promotes uncertainty of application). Accordingly, continuous treatment cases may provide some useful guidance as to the policies and outcomes intended but should not be relied on as authority for the circumstances under which special relationships terminate under the continuing course of conduct doctrine.
The present case provides an opportunity to examine the parameters of special relationships governed exclusively by the more general continuing course of conduct doctrine. As this court previously has explained, “[u]sually, such a special relationship is one that is built upon a fiduciary or otherwise confidential foundation. A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . . Fiduciaries appear in a variety of forms, including agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians.” (Citations omitted; internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, supra, 312 Conn. 835-36.
The question in the present case, however, is not whether an agency relationship existed, but whether an existing agency relationship and any attendant fiduciary duties8 continued after the final claim
In addition to the possibility that a special relationship may terminate altogether, the relationship may change from its original form. “That a relationship of agency exists does not foreclose the possibility that it may be preceded or followed by another type of legal relationship between the same parties, nor does it foreclose the possibility that another type of legal relationship may exist contemporaneously between the same parties or that the character of a relationship may evolve over time.” 2 Restatement (Third), Agency § 8.01, comment (c), p. 256 (2006); see also DeLeo v. Nusbaum, supra, 263 Conn. 594 (tolling under continuous representation doctrine requires not only that attorney continue to represent client but also that representation be related to same transaction or subject matter as allegedly negligent acts). Therefore, in the present case, it may be necessary to consider not only whether the parties’ special relationship terminated but also the nature of any relationship that existed after the final check was issued by the plaintiff to the insured in March, 2007.
In considering the nature of the relationship, we draw on fundamental principles of agency and fiduciary law. Essential elements of agency are that the principal has the “right to control the agent‘s actions“; 1 Restatement (Third), supra, § 1.01, comment (f) (1), p. 26; and that “the agent is doing something at the behest and for the benefit of the principal.” (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983). “[T]he general fiduciary principle requires that the agent subordinate the agent‘s interests to those of the principal and place the principal‘s interests first as to matters connected with the agency relationship.” 2 Restatement (Third), supra, § 8.01, comment (b), p. 250. By contrast, the mere fact “that one business person trusts another and relies on [the person] to perform [his obligations] does not rise to the level of a confidential relationship for purposes of establishing a fiduciary duty. . . . [N]ot all business relationships implicate the duty of a fiduciary. . . . [A] mere contractual relationship does not create a fiduciary or confidential relationship.”9 (Citations omitted;
With this background in mind, we turn to the present case. The plaintiff points to the following conduct as proof that the special relationship giving rise to a duty to disclose Intervest‘s mortgagee interest continued after the plaintiff issued the final claim check in March, 2007: (1) the defendant‘s August or Septеmber, 2007 communication to the plaintiff relaying the inquiry from the other excess insurer as to how the plaintiff had made its payment checks payable; (2) the defendant‘s actions in response to the 2009 subpoena and 2012 deposition, including billing the plaintiff for Martin‘s time and using the plaintiff‘s attorney; and (3) Martin‘s testimony that the defendant still viewed the plaintiff as a client and the parties as having an ongoing relationship.10 While we agree that these facts evidence some sort of relationship, we disagree that it was a continuation of the special relationship formed by the agreement to provide full adjustment services.
Prior to March, 2007, while the defendant was providing full adjustment services to the plaintiff, the defendant was under a duty to act for the benefit of the plaintiff. The defendant‘s dominance or influence, and, hence, its fiduciary duties, arose because it, unlike the plaintiff, was licensed to perform those services in Florida.
None of the defendant‘s actions after March, 2007, reasonably could be considered further performance of any of the full adjustment services previously delineated and, thus, a further continuation of that fiduciary relationship. The defendant closed its file on the Villas shortly after the plaintiff issued the final claim check, signifying that it had completed its performаnce of the adjustment services for which it had been hired. See DeLeo v. Nusbaum, supra, 263 Conn. 597 (formal termination occurs when matter for which defendant was hired comes to conclusion); Bassett v. Mechanics Bank, 118 Conn. 490, 493, 173 A. 228 (1934) (fiduciary relationship ordinarily “continues until completion of the transaction upon which the agent was employed“); see also 2 Restatement (Third), supra, § 8.01, comment (c), p. 255 (“[a]n agent‘s fiduciary duty to a principal is generally coterminous with the duration of the agency relationship“). The defendant made no commitment to perform additional adjustment services after the plain-tiff issued the final claim check. Cf. Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra, 69 Conn. App. 161–62 (further dealings that were contemplated between parties, evidenced by “promises after the initial wrong or promises to do anything additional in the future,” may give rise to continuing fiduciary relationship); Sanborn v. Greenwald, 39 Conn. App. 289, 297, 664 A.2d 803 (1995) (noting that no extended relationship
In addition to the fact that the defendant‘s post-2007 actions were not adjustment services, none of those actions bears the hallmarks of agency generally or of a fiduciary specifically. The plaintiff had no right to control the defendant‘s response to Intervest‘s discovery requests, directed exclusively to the defendant. See City Council v. Hall, 180 Conn. 243, 249, 429 A.2d 481 (1980) (it is served party‘s obligation to comply with lawfully issued subpoena). In fact, there was no evidence that the plaintiff directed the defendant to undertake any action in response to those requests or that it had any expectation that the defendant would do anything other than comply with its legal obligation. The defendant had no obligation, or right, to withhold evidence that could expose the plaintiff to liability, or to assert objections to disclosure on the basis of any right or privilege held by the plaintiff. Instead, the defendant was merely reporting on past events. Cf. Manzo-Ill v. Schoonmaker, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-5014084-S (March 7, 2017) (Povodator, J.) (“assistance with preparation/presentation of the factual record of prior events, after an otherwise clear cessation of representation, does not constitute continued representation“).
Undoubtedly, the defendant‘s acts in billing Martin‘s time to the plаintiff and using the plaintiff‘s attorney reflect some sort of business relationship between the parties. As we previously observed, however, “[n]ot all business relationships implicate the duty of a fiduciary.” (Internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, supra, 312 Conn. 836. The unique element that gives rise to a fiduciary duty—the risk that the other party could be taken advantage of as a result of one party‘s access to, or influence regarding, another party‘s moneys, property, or other valuable resources; Iacurci v. Sax, supra, 313 Conn. 801-802; was not present during the parties’ limited interactions after March, 2007. Thus, irrespec-tive of whether these facts are sufficient to justify the defendant‘s belief that the plaintiff continued to be its client, they are plainly insufficient to establish that any fiduciary relationship created by the agreement to perform full
Insofar as the plaintiff contends that Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 907 A.2d 1220 (2006), supports a contrary conclusion, the relationship in that case is materially distinguishable. In Vanliner Ins. Co., the defendant insurance adjuster breached a continuing duty to the plaintiff insurance company by failing to disclose that the defendant had not timely filed a notice of transfer of a workers’ compensation claim to the Second Injury Fund, which exposed the plaintiff to liability. Id., 139–42. Vanliner Ins. Co. is distinguishable precisely because the defendant in that case continued to represent the plaintiff in proceedings relating to the claim during the relevant period. Id., 127–28, 131. There was an unchallenged factual finding that the defendant in Vanliner Ins. Co. continued to act as the plaintiff‘s agent. Id., 140–41. The defendant in the present case did not continue to act in any such representative capacity.
We conclude that the evidence did not establish that any existing fiduciary relationship between the parties continued through October, 2010.
B
This conclusion does not, however, end our inquiry. The plaintiff also relies on case law in which our appellate courts have recognized that a duty to warn or correct a mistake may extend after the termination of the special relationship that gave rise to that duty. Our case law has not made it clear whether this basis for tolling falls under the special relationship prong or the later wrongful conduct prong. However, with one limited exception, which we discuss in part II of this opinion, all of the cases involving this basis arise following the termination of a special relationship. Therefore, we analyze this bаsis under the special relationship prong. We conclude that the limited circumstances under which such a duty would continue were not satisfied in the present case.
As a general matter, “the continuing course of conduct is not the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing.” Connell v. Colwell, supra, 214 Conn. 255; see also Flannery v. Singer Asset Financial Co., LLC, supra, 312 Conn. 321-22 (argument that former attorney‘s ongoing failure to confess his earlier tortious act tolled limitation period would make statute of limitations illusory). A duty to warn or take corrective action that could reveal such wrongdoing may continue after a fiduciary or confidential relationship terminates, however, if the defendant has actual knowledge of the underlying facts and their significance. See Martinelli v. Fusi, supra, 290 Conn. 363 (“in all of those cases in which we have imposed a continuing duty on the defendant in the absence of an ongoing physician-patient relationship, the plaintiff had submitted at least some subjective evidence that the defendant was actually aware of the requisite underlying facts” [emphasis omitted]); Neuhaus v. DeCholnoky, 280 Conn. 190, 203, 905 A.2d 1135 (2006) (“‘a continuing duty must rest on the factual bedrock of actual knowledge‘“).11
The plaintiff‘s argument founders on the actual knowledge requirement. Although it asserts in its brief to this court that the defendant had actual knowledge of Intervest‘s mortgagee interest before the plaintiff issued the final Villas chеck, it took a markedly different tack at trial. The plaintiff did not assert any claims of intentional misconduct. At trial, the plaintiff effectively conceded to the court, in a pretrial proceeding, and to the jury, both in its counsel‘s cross-examination of Oberpriller and Martin, and in counsel‘s closing argu-ment, that the defendant did not have actual knowledge of the mortgage schedule. In those statements, the plaintiff‘s counsel plainly acknowledged that the plaintiff was not claiming that the defendant‘s failure to disclose the mortgage information in the Aspen file was intentional.13 Instead, the plaintiff‘s counsel
Even if we could overlook the statements by the plaintiff‘s counsel and examine the entirety of the evidence, as the plaintiff suggests we should do, we would not be persuaded that there is a basis on which the jury reasonably could have concluded that the defendant had actual knowledge of Intervest‘s mortgage interest prior to the 2012 deposition proceedings.14 Both Martin and Oberpriller testified that they had no recollection of ever seeing the schedule of mortgagees during the relevant time frame. The evidence regarding the respective roles of Martin and Oberpriller in the adjustment process, and the management of paperwork received, was consistent with this testimony. Although Oberpriller took action in response to the letter that was accompanied by the schedule, that letter did not refer to the Villas or Intervest; nor did it make clear that the enclosed document provided mortgagee information for any property other than Park Apartments. In sum, the evidence established that a secretary filed the schedule, unseen by any person who might have recognized its significance, in a thin file that was never incorporated into Oberpriller‘s working file.
We recognize that the sufficiency of evidence is viewed in the light most favorable to sustaining the jury‘s verdict. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 370–71, 119 A.3d 462 (2015); see also Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005) (applying similar standard under federal law). In that vein, we are mindful that the jury was free to discredit testimony from Martin and Oberpriller as to their lack of knowledge. Nonetheless, the jury was not free to conclude from that rejection that the opposite of the testimony is truе. See Burns v. Adler, 325 Conn. 14, 40 n.17, 155 A.3d 1223 (2017); State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985). There was no evidentiary basis to conclude that the defendant had actual knowledge of Intervest‘s mortgage interest. Cf. Bednarz v. Eye Physicians of Central Connecticut, P.C., supra, 287 Conn. 167 (there was genuine issue of material fact as to whether defendant had actual knowledge of test result in plaintiff‘s medical records when defendant denied knowledge and plaintiff presented expert testimony that defendant would have known about such information).
Therefore, on the basis of the record before us, we conclude that the evidence is not legally sufficient to establish a сontinuing duty on the basis of a special relationship.
II
The question that remains is whether the plaintiff presented legally sufficient evidence to establish a breach of a duty that continued after the final check was issued through later wrongful conduct by the defendant related to its prior omission. See Saint Bernard School of Montville, Inc. v. Bank of America, supra, 312 Conn. 837. Such later wrongful conduct also may include acts of omission. See, e.g., Flannery v. Singer Asset Financial Co., LLC, supra, 312 Conn. 312-13; Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, supra, 69 Conn. App. 161. Again, to prevail under this theory in the present case, the plaintiff had to prove that such wrongful conduct continued until at least October, 2010.
The federal courts focused on the events occurring during the course of the Intervest action. The District Court concluded that the only post-2007 conduct by the defendant that could possibly be considered wrongful was its incomplete response to the 2009 subpoena. Because that omission occurred more than three years before commencement of the action, the District Court concluded that the plaintiff could not prevail on that basis. The Second Circuit suggested that the pretrial proceedings in the Intervest action between 2009 and 2012 “could have put the defendant on notice that something was amiss in its loss adjustment work.” Evanston Ins. Co. v. William Kramer & Associates, LLC, supra, 890 F.3d 51.
In its brief to this court, the plaintiff does not identify any particular action by
We observe that, in the context of product liability type cases of older vintage, this court recognized a continuing duty to warn without requiring the defendant‘s actual knowledge of the condition.16 See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 242, 429 A.2d 486 (1980) (there was later wrongful conduct to support continuing course of conduct when defendant installed defective safety switch on furnace and, thereafter, in response to repeated complaints, gave negligent instructions to plaintiff on how to respond); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) (applying continuing course of conduct doctrine to toll statute of limitations on basis of continuing duty to warn of defective cartridge by manufacturer). Such cases are now governed by a different statute of limitations; see
Finally, insofar as the Second Circuit suggested the possibility that the discovery efforts in the Intervest action should have put the defendant on notice that “something was amiss” in its loss adjustment work, the relevance of such a possibility to our continuing course of conduct tolling doctrine is unclear. The Second Circuit may have had in mind the “storm warnings” doc-trine it has adopted in the context of certain federal actions
In sum, the trial evidence is not legally sufficient to support the jury‘s finding that the statute of limitations was tolled at least through October 21, 2010, thus rendering the plaintiff‘s action timely under the continuing course of conduct doctrine, on the basis of either a special relationship or later wrongful conduct.
We answer the certified question “no.”
No costs shall be taxed in this court to either party.
In this opinion the other justices concurred.