Opinion
CV105033401S
02-26-2018
Rochelle Myrick, Administratrix of the Estate of Ensley E. Myrick and Tara Reed, Administratrix of Joseph E. Reed and Anthony Perelli v. Jack A. Halprin, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION IN LIMINE (#290) STATEMENT OF CASE AND PROCEDURAL HISTORY
Wilson, J.
On July 16, 2010, the plaintiffs, Rochelle Myrick, administratrix of the estate of Ensley E. Myrick, Tara Reed, administratrix of the estate of Joseph E. Reed, and Anthony Perelli, filed a twelve-count complaint against the defendants, Jack Halprin, Inc. (Halprin), Catwalk, LLC (Catwalk), and Markease Hill, which was later amended in order to remove Hill as a defendant and to correct typographical errors. The amended complaint alleges the following facts. Halprin owned property located at 301 East Street in New Haven (the property). Catwalk, a purveyor of adult entertainment, was located on the property, along with a parking lot. Halprin and Catwalk both controlled, managed, and possessed the property, including the parking lot. The parking lot contained defective and dangerous conditions because it was the site of criminal activities and remained unsupervised and unsecured, even though Halprin and Catwalk knew or reasonably should have known of its defective and dangerous condition. On June 11, 2008, the plaintiffs’ decedents, Myrick and Reed, and Perelli, were on the property as business invitees of Catwalk, and had parked their motor vehicles in the parking lot. While in the parking lot, Hill shot and killed the plaintiffs’ decedents and fired a gun at Perelli, which caused him to flee and suffer injuries. Counts one through three allege that the plaintiffs’ damages were caused by the negligence of Halprin, because Halprin failed to prevent or cure the defective and dangerous condition of the parking lot. Counts four through six allege that the plaintiffs’ damages were caused by the negligence of Catwalk, because Catwalk failed to prevent or cure the defective and dangerous condition of the parking lot.
The remaining counts were directed at Hill and have been removed from the plaintiffs’ amended complaint.
After extensive pretrial discovery and motion practice, on February 7, 2018, prior to the commencement of jury selection, Halprin filed a motion in limine seeking an order precluding the plaintiffs from presenting any evidence or argument relating to Halprin’s negligence on the ground that litigation of that issue is barred by the doctrine of collateral estoppel. In response to Halprin’s motion, the plaintiffs jointly filed a memorandum of law regarding the applicability of the doctrine of collateral estoppel, arguing that collateral estoppel does not bar their claims against Halprin. The court heard oral argument on the matter on February 13, 2018.
DISCUSSION
Practice Book § 15-3 provides that " [t]he judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. If a case has not yet been assigned for trial, a judicial authority may, for good cause shown, entertain the motion. Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. All interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding." " [T]he motion in limine ... has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial." (Internal quotation marks omitted.) McBurney v. Paquin, 302 Conn. 359, 378, 28 A.3d 272 (2011).
Halprin’s motion in limine seeks an order precluding the plaintiffs from presenting any evidence or argument relating to its negligence. Halprin argues that, because the issue of whether it caused the plaintiffs’ damages was already decided in a prior action, collateral estoppel prevents relitigation of the cause of the plaintiffs’ injuries or Halprin’s negligence. Halprin contends that, in a separate action, Colony Ins. Co. v. Jack A. Halprin, Inc., United. States District Court, Docket No. 3:10CV1059 (CSH) (D.Conn. July 11, 2012), the federal court determined that the damages alleged in the plaintiffs’ complaint were not caused by Halprin. Thus, Halprin argues, it cannot be held liable in the present action.
In response, the plaintiffs argue that collateral estoppel does not apply to bar their claims against Halprin. They argue that the issue before the federal court was contractual in nature, because it sought a determination of coverage under an insurance policy (the policy) issued to Halprin by Colony Insurance Company (Colony) that contained an assault and battery exclusion. Although the federal court determined that the allegations in the plaintiffs’ complaint were excluded from Halprin’s insurance policy, the plaintiffs argue that the federal court did not make a final determination on the merits as to the material facts presently before the court.
" The fundamental principles underlying the doctrine of collateral estoppel are well established." (Internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004). " [Collateral estoppel] is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." (Internal quotation marks omitted.) State v. Bonner, 110 Conn.App. 621, 631, 955 A.2d 625, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). " The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate." (Emphasis omitted; internal quotation marks omitted.) Marques v. Allstate Ins. Co., 140 Conn.App. 335, 339, 58 A.3d 393 (2013).
" For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). " An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Emphasis omitted; internal quotation marks omitted.) Deutsche Bank AG v. Sebastian Holdings, Inc., 174 Conn.App. 573, 587, 166 A.3d 716, cert. granted, 327 Conn. 967, 173 A.3d 954 (2017). " Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding." (Internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc., 173 Conn.App. 630, 649-50, 164 A.3d 731, cert. granted, 327 Conn. 963 (2017). " [T]he court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding ... Simply put, collateral estoppel has no application in the absence of an identical issue." (Citation omitted; internal quotation marks omitted.) Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 169, 30 A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012).
THE FEDERAL ACTION
In Colony Ins. Co. v. Jack A. Halprin, Inc., supra, United States District Court, Docket No. 3:10CV1059 (CSH) (the federal action), the federal court, Haight, J., held that Colony had no duty to defend or indemnify its policy holder, Halprin, for the claims brought by the plaintiffs in the present action. In reaching its conclusion, the federal court first examined the policy itself, and concluded that the language of its " Assault and Battery Exclusion" was clear and unambiguous. Id. The federal court then examined the factual allegations contained in the plaintiffs’ complaint in the present action, in order to determine whether those allegations might possibly set forth a cause of action that was covered by the policy. Id. In making its determination, the federal court set forth the parameters of its inquiry, explaining that " the insurer’s duty to defend is measured by the allegations of the complaint." Id. The court further stated that " the existence of a duty to defend is based solely on the information and allegations contained within the four corners of the complaint," and that " [t]he duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage." (Internal quotation marks omitted.) Id.
The " Assault and Battery Exclusion" provided that there was no insurance coverage for " damages or expenses due to ‘bodily injury,’ property damage’ or ‘personal and advertising injury’ arising out of or resulting from: (1) Assault and Battery committed by any person; (2) The failure to suppress or prevent assault and battery by any person; (3) The failure to provide an environment safe from assault and battery or failure to warn of the dangers of the environment which could contribute to assault and battery; (4) The negligent hiring, supervision, or training of any person; (5) The use of any force to protect persons or property whether or not the ‘bodily injury’ or ‘property damage’ was intended from the standpoint of the insured or committed by or at the direction of the insured." (Footnote omitted; internal quotation marks omitted.) Colony Ins. Co. v. Jack A. Halprin, Inc., United States District Court, Docket No. 3:10CV1059 (CSH) (D.Conn. July 11, 2012).
The court then examined the allegations set forth by the plaintiffs in the present action and found that they were not covered by the policy. Id. The federal court concluded that the state action allegations " seek damages injuries arising from an assault and battery" and seek recovery for deaths and injuries that " all resulted] from alleged gunshots ..." Id. The federal court held that, " pursuant to the ‘Assault and Battery Exclusion’ ... Colony has no duty to defend Halprin in the Myrick action for damages resulting from the alleged gunshots ..." Id. That paragraph of the federal court’s analysis also contains the following sentence, which Halprin argues demonstrates that the federal court has already made a finding of fact regarding the cause of the plaintiffs’ claims in the present action: " The fact that these plaintiffs base their action on the negligence of Halprin in its control and management of the premises does not alter the primary cause, of all such damages- assault and battery, that is, gunshots by Hill." Id. In a footnote, however, the federal court clarified its holding by stating that " [i]t is the allegations in the Myrick Action complaint that are determinative and not the merits of those allegations ... The ultimate success of the underlying action is irrelevant for determining whether the insurer has the duty to defend." Id.
APPLICATION
In the present case, the doctrine of collateral estoppel does not bar the presentation of evidence, testimony, or argument concerning Halprin’s negligence, or the cause of the plaintiffs’ damages, because the issue before the federal court was not identical to the issue before the court in the present action. The issue before the federal court was whether the allegations contained in the plaintiffs’ complaint were excluded from the policy by a broadly written assault and battery exclusion, rather than whether Halprin’s negligence caused the plaintiffs’ claimed damages. In analyzing the allegations set forth in the state action complaint, the federal court did not consider their merits, but only inquired into whether the state action plaintiffs’ claimed damages were alleged to have arisen out of or resulted from an assault and battery.
To the extent that the federal court’s ruling in the Colony action can be considered a finding of fact as to the cause of the state action plaintiffs’ damages, it was not necessary or germane to the federal court’s decision. Although it is true that " [i]t is not dictum ... when a court ... intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy" ; Cofrancesco Chiropractic & Healing Arts v. Maciejewski, Superior Court, judicial district of New Haven, Docket No. CV-13-6042888-S (May 16, 2016, Wilson, J.); the language in the federal court’s ruling regarding the " primary cause" of the state action plaintiffs’ damages was not germane to the issue of whether the policy provided coverage to Halprin for the state action plaintiffs’ damages. Thus, it is not afforded preclusive effect for the purposes of collateral estoppel, and such language in the federal court’s decision is dictum.
When considered in context, the federal court likely did not intend the sentence discussing the " primary cause" of the state action plaintiffs’ damages to be a finding of fact as to the actual causation of the state action plaintiffs’ damages. The section of the federal court’s decision that discusses the " primary cause" of the state action plaintiffs’ damages is titled " Myrick Action Allegations." Colony Ins. Co. v. Jack A. Halprin, Inc., supra, United States District Court, Docket No. 3:10CV1059 (CSH). The first two paragraphs of that section describe the allegations of the state action plaintiffs’ complaint, and in the third paragraph, which provides an analysis of the allegations, the court uses the words " allegations," " allegedly," and " alleged," in each sentence except for the sentence discussing the " primary cause" of the state action plaintiffs’ damages. Id. Moreover, in a footnote at the end of that paragraph, the court explained that " [i]t is the allegations in the Myrick Action complaint that are determinative and not the merits of those allegations ... The ultimate success of the underlying action is irrelevant for determining whether the insurer has the duty to defend." Id.
The case of Deutsche Bank AG v. Sebastian Holdings, Inc., supra, 174 Conn.App. 573, illustrates how a court’s nonessential factual findings in a prior action do not serve as grounds for invoking collateral estoppel in a subsequent action. In that case, Deutsche Bank AG (Deutsche Bank) was awarded a judgment (English judgment) against Sebastian Holdings, Inc. (Sebastian), a corporation, by the Queen’s Bench Division of the High Court of Justice of England and Wales (English court). Id., 576. Subsequent to that judgment against Sebastian, Deutsche Bank filed a " nonparty costs application" with the English court seeking to hold Alexander Vik, the sole shareholder and director of Sebastian, personally liable for portions of Deutsche Bank’s court costs. Id., 576-77. The English court concluded that Vik was personally liable for Deutsche Bank’s costs and granted the nonparty costs application. Id., 577.
Subsequent to Sebastian’s failure to make payment, Deutsche Bank filed an action in Connecticut to enforce the English judgment against Vik personally. Id., 577-78. After a period of discovery, the defendants and the plaintiff moved for summary judgment, but both motions were denied by the trial court. Id., 578. As to Deutsche Bank’s motion, the trial court concluded that " Vik was not collaterally estopped from denying liability for Sebastian’s debt because the issue was not actually or necessarily decided in the English action." Id., 578. The parties subsequently appealed the trial court’s denial of their motions for summary judgment. Id., 578.
Upon consideration of the parties’ appeals, our Appellate Court determined that " the facts relevant to the issues in the English judgment and those in the present case are not ‘identical’ for purposes of issue preclusion." Id., 588. The court explained, however, that its resolution of Deutshe Bank’s appeal was " complicated by the English court’s disposition of Sebastian’s counterclaims and the postjudgment award of costs rendered against Vik." Id., 588. In the English action, Sebastian counterclaimed that Deutsche Bank breached contractual and other duties that it owed to Sebastian. Id., 588. The English court disagreed, and in denying the counterclaim, " the English court found both that (1) [Deutsche Bank] did not breach its duties to Sebastian, contractual or otherwise, and (2) Vik had control over Sebastian such that any alleged breach of duty on behalf of [Deutsche Bank] should not have interfered with Vik’s ability to transfer funds to or from Sebastian." Id., 588.
Our Appellate Court held that " the English court’s findings relating to Vik’s control of Sebastian and that Vik could have transferred funds back to Sebastian were unnecessary to the court’s conclusion since the court had already determined that [Deutsche Bank] had not breached any duties to [Sebastian]." (Internal quotation marks omitted.) Id., 588-89. " Because only those issues that were necessarily determined by the English court could invoke the doctrine of collateral estoppel, the English court’s finding that [Deutsche Bank] did not breach any duties it owed to Sebastian was the only essential issue determined by the English court pertaining to the counterclaim." Id., 589. Thus, the court declined to give preclusive effect to issues relating to Vik’s control of Sebastian, because the findings of the English court as to those issues were nonessential. Id., 589. Further, the issue of whether Vik was Sebastian’s alter ego was not foreclosed because that issue was not identical to those issues before the English court. Id., 591.
Similar to the court’s holding in Deutsche Bank AG v. Sebastian Holdings, Inc., supra, 174 Conn.App. 573, in this case, that portion of the federal court’s decision, wherein the court describes, the " primary cause" of the state action plaintiffs’ damages, was nonessential. It does not preclude litigating the cause of the state action plaintiffs’ damages or Halprin’s negligence in this action, because the issues in the two cases are not identical. In the federal action, the court was considering whether, by looking to the four corners of the state action plaintiffs’ complaint and the language of the policy, there was a possibility of coverage. Any finding as to whether Halprin will ultimately be found liable to the state action plaintiffs was not essential to the federal court’s decision. Therefore, that portion of the federal court’s decision discussing the " primary cause" of the plaintiffs’ damages is not afforded preclusive effect.
CONCLUSION
Based on the foregoing, Halprin’s motion in limine seeking to preclude the plaintiffs from presenting any evidence or argument relating to the cause of the plaintiffs’ damages or Halprin’s negligence is denied.