235 Conn. 185 | Conn. | 1995
These certified appeals arise out of litigation stemming from a fire started by Barry Schuss on August 15, 1983, that caused extensive damage to the Emanuel Synagogue in West Hartford. The plaintiff, Home Insurance Company (Home), which was the synagogue’s insurer, obtained a judgment against Schuss and, thereafter, brought this subrogation action against the defendant, Aetna Life and Casualty Company (Aetna), the insurer of Schuss’ parents. After the trial court, Hodgson, J., had denied Home’s motion for
Home appealed to the Appellate Court, claiming that the trial court improperly had: (1) denied its request for access to Schuss’ psychiatric records; and (2) granted Aetna’s motion for summary judgment. The Appellate Court agreed with both of Home’s claims and, accordingly, reversed the judgment of the trial court. Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn. App. 94, 644 A.2d 933 (1994).
We granted Schuss’ petition for certification to appeal, limited to the issue of whether the Appellate Court properly concluded that Home was entitled to access to his psychiatric records. We also granted Aetna’s petition for certification to appeal, limited to the issue of whether there existed a genuine issue of material fact concerning the applicability of the policy exclusion in the circumstances of this case.
The facts and procedural history relevant to this appeal are set forth in the opinion of the Appellate Court. “This is a subrogation action to recover an amount paid by [Home] for damages caused by a fire at the Emanuel Synagogue in West Hartford. The fire was set by Barry Schuss who pleaded guilty to arson in the third degree in violation of General Statutes § 53a-113 (a).
“[Home], as the insurer and assignee of the Emanuel Synagogue, paid its insured $696,539.71 for the damage caused by the fire and commenced an action against Schuss to recover the amount paid. As a special defense, Schuss initially pleaded that he had been ‘exposed to various experiences in his personal life so as to result in a growing psychological vulnerability [and] ... his loss of a substantial ability to control himself.’ Schuss later withdrew the special defense, and the court rendered judgment, in accordance with a stipulation, against Schuss for $696,539.71 plus interest. [Home] and Schuss stipulated that [Home] would seek to satisfy the judgment only to the extent that Schuss had insurance coverage.
“[Home] then commenced a subrogation action against [Aetna], the insurer of Schuss’ parents, to recover the amount of the judgment obtained against Schuss.
“[Home] filed an application for an order pursuant to General Statutes § 52-146f for the release of certain confidential psychiatric records of Schuss.
Home appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had: (1) denied Home’s application for an order releasing Schuss’ psychiatric records; and (2) granted Aetna’s motion for summary judgment. The Appellate Court reversed on both issues, concluding that “[although the patient, Schuss, introduced his mental condition in [Home’s] action against Schuss, and not in [Home’s] action against [Aetna] . . . the actions are one and the same because the action against Schuss is the underlying action to the subrogation action against [Aetna].” Id., 99. Having determined that Schuss had, in effect, placed his mental condition at issue in Home’s subrogation action against Aetna, the Appellate Court concluded that Home was entitled to access to Schuss’ psychiatric records pursuant to § 52-146f (5); id., 99-101; and that the issue of whether Schuss had “expected or intended” to cause damage to the synagogue within the meaning of the insurance policy’s intentional act exclusion clause was a question of fact to be decided by the jury. Id., 101-107. Accordingly, the Appellate Court
On appeal to this court, Schuss claims that the Appellate Court incorrectly concluded that Home is entitled to access to his psychiatric records under § 52-146f (5), and Aetna claims that the Appellate Court improperly concluded that there existed a genuine issue of material fact regarding the applicability of the exclusion in its policy for property damage intentionally caused by an insured. We agree with both of these claims and, accordingly, we reverse the judgment of the Appellate Court, and reinstate the judgment of the trial court.
I
Home acknowledges that Schuss’ psychiatric records fall within the ambit of General Statutes § 52-146e,
A
Under § 52-146f (5), communications or records that are otherwise subject to the psychiatrist-patient privilege under § 52-146e “may be disclosed in a civil proceeding in which the patient introduces his mental condition as
Home’s argument is contrary to the plain language of § 52-146f (5), which expressly limits disclosure of psychi
We find nothing in the legislative history of §§ 52-146e and 52-146f, or their precursor, General Statutes § 52-146a, to suggest that the legislature intended the result urged by Home. As we have previously observed, “[t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records”; State v. D'Ambrosio, 212 Conn. 50, 55, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); and the principal purpose of that privilege is to “give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor’s testimony.” State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and patient were drafted narrowly to ensure that the confidentiality of such communications will be protected unless important countervailing considerations require their disclosure. See, e.g., 9 H.R. Proc., Pt. 8, 1961 Sess., p. 3945, remarks of Representative Nicholas B. Eddy (statutory scheme “ ‘defines the protected relationship carefully and at the same time recognizes the legitimate interest of society in intruding upon the relationship in
We are not persuaded, moreover, that Home’s subrogation claim against Aetna is, in effect, the same action as Home’s claim against Schuss for the puipose of § 52-146f (5). The principle of substitution in subrogation actions refers not to the relationship between the underlying claim and the subrogation action but, rather, to the substitution of the subrogee for the subrogor. Indeed, the right to subrogation does not depend on the existence of any earlier litigation. See Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 238, 193 A.2d 769 (1937) (“[subrogation] is a legal fiction through which one who, not as a volunteer or in his own wrong and where there are no outstanding and superior equities, pays the debt of another, is substituted to all the rights and remedies of the other”).
Furthermore, the claims underlying Home’s action against Schuss and its action against Aetna are completely different: the former was brought as a common law trespass action, and the latter as a statutory subrogation action involving the scope of an insurer’s liability coverage under an insurance policy. Because the claims are separate and distinct, the facts to be proven in satisfaction thereof are also different. Finally, although the two actions were commenced by the same plaintiff, each
Although neither the Appellate Court nor Home cite any authority for the proposition that § 52-146f (5) applies to a subrogation action in which the subrogor seeking to protect the confidentiality of his or her psychiatric records is not a party, Home relies generally on Goldenberg v. Wolfe, 44 F.R.D. 33 (D. Conn. 1968), to support its claim. In Goldenberg, the plaintiff sued her attorney for legal malpractice for his handling of a case in which the plaintiffs mental condition was an issue. Although the trial court in Goldenberg concluded that the plaintiffs psychiatric records were disclosable under § 52-146f (5), its conclusion was not based upon any connection between the two cases but, rather, because the plaintiff, in initiating the second action, thereby had placed her mental condition at issue. Here, Schuss is not a party to the second action and, therefore, Home cannot claim that Schuss has placed his mental condition at issue as required by § 52-146f (5).
In sum, Home’s claim finds no support in the language of § 52-146f (5), the pertinent legislative history, the policy underlying the psychiatrist-patient privilege or any precedent. We conclude, therefore, that Home is not entitled to access to Schuss’ psychiatric records under § 52-146f (5).
B
Home next asserts that § 38a-321, which subrogates a judgment creditor to the rights of his or her debtor against the debtor’s insurer, authorized Home to waive the confidentiality of Schuss’ psychiatric records.
Under § 38a-321, a party who obtains a judgment against an insured defendant “shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant . . . could have enforced his claim against such insurer had such defendant paid such judgment.” Thus, § 38a-321 authorized Home to assert any claim or defense that Schuss himself could have raised had Schuss himself brought suit against Aetna. We repeatedly have stated, however, that the “intention of the [statute] is to give to the [judgment creditor] the same rights under the policy as the assured . . . .’’(Citations omitted; emphasis added; internal quotation marks omitted.) Brown v. Employers’ Reinsurance Corp., 206 Conn. 668, 672, 539 A.2d 138 (1988), quoting Guerin v. Indemnity Ins. Co., 107 Conn. 649, 653, 142 A. 268 (1928); see also Verdon v. Transamerica Ins. Co., 187 Conn. 363, 369, 446 A.2d 3 (1982). Because Schuss’ right to maintain the confidentiality of communications with his psychiatrist arises under § 52-146e and not under his contract of insurance with Aetna, § 38a-321 does not empower Home to waive Schuss’ privilege. Although Home was entitled, of course, to raise the claim that Schuss did not intend to cause damage to the synagogue when he set it afire, Home’s assertion of such a claim does not also entitle it to access to Schuss’ psychiatric records.
In effect, Home urges us to construe § 38a-321 as creating an exception to a psychiatric patient’s right to confidentiality under § 52-146e. See Skrzypiec v. Noonan, 228 Conn. 1, 9-10 n.6, 633 A.2d 716 (1993) (reserving question of whether disclosure of otherwise confidential psychiatric records was authorized by Workers’ Compensation Act). We decline to do so because we are unable to find any support for Home’s
Home cites State v. White, supra, 169 Conn. 223, in support of the claim that the legislature intended to empower a subrogee to waive its subrogor’s psychiatrist-patient privilege. In White, we concluded that General Statutes (Rev. to 1981) § 19-492 (c),
Finally, our conclusion is consistent with one of the primary purposes underlying the enactment of §§ 52-146e and 52-146f, namely, to give “the patient control over who gets his records.” 13 H.R. Proc., Pt. 9, 1969 Sess., p. 4191, remarks of Representative Robert G. Oliver. The statutory construction urged by Home would remove such control from the patient-subrogor by permitting the subrogee to waive the patient’s privilege without regard to the patient’s desire to maintain the confidentiality of his or her psychiatric communications and records. Because we are not persuaded that the legislature intended such a result, we reject Home’s claim.
C
Home’s final argument is that the stipulation it entered into with Schuss carried with it an implied covenant that Schuss would take no action detrimental to Home’s subrogation claim against Aetna. Schuss’ efforts to block the release of his psychiatric records, Home maintains, violated this implied covenant. We do not agree.
Home argues that because Schuss knew that Home would proceed against Aetna under § 38a-321 after having obtained a judgment against Schuss, Home “justifiably expected to obtain all the records of Schuss necessary to prosecute its subrogation action.” In the circumstances, however, Home’s expectation that it would be able to obtain Schuss’ psychiatric records gave rise to no legally cognizable right in Home to gain access to those records. We have stated that “[e]very contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Habetz v. Condon, 224 Conn. 231,
There is further reason to reject Home’s claim. Whatever contractual obligation Home claims Schuss had to assist Home in its litigation against Aetna, that obligation, in the absence of an explicit agreement between the parties, cannot extend to Schuss’ statutoiy right to maintain the confidentiality of his psychiatric records. To conclude otherwise would allow Home to obtain access to Schuss’ confidential psychiatric communications without demonstrating either that the records were available under a recognized exception to the psychiatrist-patient privilege or that Schuss himself expressly had consented to the release of the records. In view of the strong public policy in favor of the confidentiality of psychiatric communications, it cannot be presumed that Schuss’ agreement to a stipulated judgment on the issue of damages also represented his consent to the release of the records in question. See State v. Toste, 178 Conn. 626, 629-30, 424 A.2d 293 (1979) (waiver of privilege not effective unless knowing and intelligent). Furthermore, Schuss consistently has taken the position that his psychiatric records are confidential and not subject to release.
II
Aetna claims that the Appellate Court improperly concluded that the trial court should not have granted Aetna’s motion for summary judgment. We agree.
The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotations marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 143 (1994). Only
In support of its opposition to Aetna’s summary judgment motion, Home offered as evidence the special defense, later withdrawn, asserted by Schuss in Home’s action against him, as well as Schuss’ deposition testimony.
We turn first to Home’s argument that Schuss’ assertion of a special defense empowered Home to use that defense for the purpose of establishing a factual basis for its claim that Schuss did not intend to cause damage to the synagogue and, consequently, that Schuss’ conduct falls outside the provision in Aetna’s policy excluding from coverage any property damage intentionally caused by its insured. Although assertions in pleadings generally are inadmissible as hearsay, “[statements in pleadings that are inconsistent with claims advanced at trial are admissible as judicial admissions.” Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978). Furthermore, “a superseded pleading remains in the case
Home advances two arguments in support of its position that Schuss’ deposition testimony raised a sufficient issue of material fact to have defeated Aetna’s summary judgment motion. First, Home claims that the testimony created a doubt as to Schuss’ credibility regarding his intent to cause damage to the synagogue. Second, Home contends that Schuss’ deposition testimony is sufficient to permit an inference that Schuss lacked the soundness of mind to have intentionally caused damage to the synagogue. We are not persuaded by either of these arguments.
Our careful review of Schuss’ deposition testimony reveals that Schuss testified consistently and unequivocally that he had intended to set fire to the Emanuel Synagogue for the purpose of damaging it.
In addition, when Schuss was asked whether he had been able to control his actions when he set the fire, Schuss stated that he was in control and that, had he wanted to, he could have stopped himself. Further, Schuss’ testimony that he had wanted to “caus[e] trouble” by setting the fire and that he was fearful only about getting caught clearly indicates that he was aware of the wrongfulness of his actions. Home has produced no evidence to the contrary.
We have not had occasion to decide the question of how an insured’s mental condition may affect the application of an insurance policy’s intentional act exclusion clause.
The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion the other justices concurred.
We granted Schuss’ petition for certification to appeal limited to the following question: “Under the circumstances of this case, did the Appellate Court properly conclude that the psychiatric records of Barry Schuss were disclosable under General Statutes § 52-146f (5)?” Home Ins. Co. v. Aetna Life & Casualty Co., 231 Conn. 921, 648 A.2d 163 (1994). We granted Aetna’s petition for certification to appeal limited to the following question: “Under the circumstances of this case, did the Appellate Court properly reverse the trial court’s summary judgment on the ground that [there] was a sufficient question of fact regarding whether Barry Schuss intended to cause damage, within the meaning of the defendant’s policy exclusion?” Id.
The two appeals have been consolidated for presentation to this court.
General Statutes § 53a-113 (a) provides in relevant part: “A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building ... of his own or of another by intentionally starting a fire or causing an explosion.”
The trial court had granted Home’s unopposed motion for summary judgment on the issue of liability. Thereafter, Home and Schuss stipulated to damages. The stipulation provided, inter alia, that Home would “seek to satisfy its judgment against the defendant Barry D. Schuss only to the extent the defendant has insurance coverage.”
General Statutes § 38a-321 provides in relevant part: “Upon the recovery of a final judgment against any person, firm or corporation by any person
Home has never disputed that the psychiatric records it seeks are confidential and, therefore, protected from disclosure under General Statutes §§ 52-146d and 52-146e. See footnotes 6 and 7. Home claims, nevertheless, that it is entitled to access to Schuss’ psychiatric records under § 52-146f, which provides in relevant part: “Consent not required for disclosure, when. Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited ... (5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected. . . .”
General Statutes § 52-146e provides: “Disclosure of communications, (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
“(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
“ (c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”
General Statutes § 52-146d provides in relevant part: “Privileged communications between psychiatrist and patient. Definitions. As used in sections 52-146d to 52-146i, inclusive . . .
“(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s
“(3) ‘Consent’ means consent given in writing by the patient or his authorized representative . . .
“(6) ‘Patient’ means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
“(7) ‘Psychiatrist’ means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.”
We certified only the first of the three claims raised by Home in support of its argument that it is entitled to disclosure of Schuss’ psychiatric records. Home has raised the remaining claims as alternate grounds for affirmance pursuant to Practice Book § 4140.
Under § 52-146f (5), the party seeking access to the privileged communications must also establish that “it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.” See footnote 5. The Appellate Court concluded that Home had satisfied this requirement; see Home Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn. App. 101; and Schuss has contested that determination. We need not reach this issue, however, because we conclude that § 52-146f (5) is inapplicable in the circumstances presented.
Schuss contends that even if Home’s action against him could be considered the same as this action for purposes of § 52-146f (5), Home is not entitled to access to his psychiatric records because Schuss withdrew his special defense in the action brought by Home against him and, furthermore, Home never sought to obtain the records in that action. Schuss argues, therefore, that to the extent he had placed his mental condition at issue in the earlier action, he had removed the issue from the case when he withdrew his special defense. Home, on the other hand, claims that once Schuss introduced his mental condition into the case, Home had a right to obtain Schuss’ psychiatric records regardless of the fact that Schuss later withdrew his special defense. In light of our conclusion that § 52-146f (5) does not apply to this action, we do not reach this issue.
Because the Appellate Court agreed with Home’s first argument, it did not consider any of Home’s other claims.
General Statutes (Rev. to 1981) § 19-492 (c) provided: “No physician or staff member of any facility for the treatment and rehabilitation of drug-dependent, persons pursuant to this chapter who submits any report or files any petition authorized by this chapter shall be held to have violated any otherwise confidential relationship.”
For example, there are indications in Schuss’ April, 1988 deposition that Schuss withdrew his special defense to avoid the release of the records under § 52-146f (5). Moreover, Schuss refused Home’s request that he release the records voluntarily, and he opposed Home’s efforts to obtain the records
Schuss was deposed by Home on April 29, 1988, December 18, 1990, February 11, 1992, and May 18, 1992.
Accordingly, Schuss’ psychiatric records also are not available to Home under § 52-146f (5). See part IA of this opinion. Had Home prevailed on its claim that Schuss’ assertion of his special defense in Home’s action against Schuss authorized Home to obtain Schuss’ psychiatric records in its action against Aetxxa, those records might have supported Home’s claim that Schuss had not intended to cause damage to the Emanuel Synagogue within the meaning of the intentional act exclusion clause of Aetna’s policy. Home conceded at oral argument, however, that without access to Schuss’ psychiatric records, the evidence available to oppose Aetna’s summary judgment motion was “very thin.”
We need not consider the question of whether Aetna could, by virtue of Home’s status as Schuss’ subrogee, use Schuss’ special defense as an admission against Home.
In ruling on the defendant’s motion for summary judgment, the trial court, Gordon, J., considered only Schuss’ deposition testimony. As the Appellate Court noted, this evidence, contrary to Home’s claim, “showed that Schuss intended and expected to cause damage to the synagogue. Schuss’ statements in his deposition of December 18, 1990, established that when
Noting that Connecticut has not yet considered the question, the Appellate Court stated that “other jurisdictions have determined that the conduct of an insured is not intentional for the purposes of an intentional act exclusion where the insured lacks a certain mental capacity.” Home Ins. Co. v. Aetna Life & Casualty Co., supra, 35 Conn. App. 103. The Appellate Court thereafter concluded that “the mental condition of an insured may affect the application of a policy’s intentional act exclusion clause”; id., 106; and enumerated the following tests that have been adopted in other jurisdictions “for determining whether the insured’s mental incapacity bars the application of an exclusionary clause .... Under one test, an insured’s actions are not considered intentional where a derangement of the insured’s intellect deprived him of the capacity to control his actions in accordance with reason, and, while
Accordingly, the defendant cannot prevail under any of the tests used in determining whether an insured’s conduct is intentional for the purposes of an insurance policy’s intentional act exclusion clause. See footnote 18. We express no view as to the standard adopted by the Appellate Court.