BISHOP

Thomas J. Weihing, with whom, on the brief, was John T. Bochanis, Bridgeport, for the appellant-appellee (plaintiff). Barbara L. Cox, New Haven, for the appellee-appellant (named defendant).
ROBINSON, ESPINOSA and BISHOP, Js.

BISHOP, J.

The issues raised in this appeal and cross appeal require us to assess whether an attorney who executes a contingency fee agreement with a client for payment of a fee greater than that prescribed by General Statutes § 52–251c, commonly known as the “fee cap statute,” may, nevertheless, recover against the client in a breach of contract action where the allowable damages are limited, by jury instruction, to the maximum allowed under the fee cap statute. The plaintiff, Laurence Parnoff, appeals from the judgment of the trial court rendered in part after a jury trial, in favor of the plaintiff as against the defendant Darcy Yuille. On appeal, the plaintiff claims that: (1) § 52–251c does not apply to the claims he was retained to assert on behalf of the defendant; (2) the application of the limitations prescribed by § 52–251c to the facts of this case violates the federal constitution; (3) the contract could not be abrogated by the defendant after the plaintiff had fully performed; and (4) the court improperly failed to charge the jury on the issue of ratification of the contract by the defendant. In response, the defendant filed a cross appeal in which she claims that: (1) it was incorrect for the court to have submitted the contract claim to the jury because enforcement of the fee agreement at issue, even with an instruction limiting permissible damages, violates the public policy of § 52–251c; (2) in submitting the contract to the jury with an instruction limiting any damages to amounts allowable under the fee cap statute, the court impermissibly reformed the fee agreement under scrutiny; and (3) there was insufficient evidence to sustain the jury's award of punitive damages and prejudgment interest. We reverse the judgment of the trial court.

The jury could have reasonably found the following facts. On December 5, 1998, the plaintiff and the defendant entered into a contingent fee retainer agreement through which the defendant retained the plaintiff “to prosecute a claim for injuries and damages resulting” from Bridgeport Hospital's (hospital) allegedly bad faith handling of the defendant's workers' compensation claim. The fee agreement provided for a contingent fee of 40 percent “in place of an hourly charge of $240.00 for work performed.” The percentage of recovery set forth in the fee agreement exceeds the cap set forth in the fee cap statute. By way of a complaint dated November 16, 1998, the plaintiff brought a claim against the hospital on behalf of the defendant. The claim contained three counts. The first count, for wrongful discharge, alleged, in essence, that the hospital had wrongfully terminated the employment of the defendant, a hospital nurse, as a retaliatory reaction to her workers' compensation claim and that, as a consequence, she had sustained financial damages and losses and also that she had sustained injury, including “the exacerbation of her medical condition ... physical, mental and psychological stress ... embarrassment and humiliation; and ... emotional distress.” The second count alleged that the hospital's conduct had been reckless and intentional and repeated the damages allegations of the first count. The third count set forth a claim based on the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., and also repeated the damages claims set forth in the first count. Subsequently, the parties to the action against the hospital agreed to submit the claims set forth in the first two counts to binding arbitration. The three person arbitration panel issued its decision on June 29, 2004, in which the panel found in favor of the hospital on count one of the complaint alleging wrongful discharge. As to the second count, alleging that the hospital had engaged in intentional and reckless conduct in response to Yuille's workers' compensation filing, the panel stated: “On Count Two of the complaint, we find in favor of [Yuille] and award damages in the amount of One Million Ninety Six Thousand Thirty Two and 93/ 100 ($1,096,032.93) Dollars.” Thereafter, the plaintiff sent an invoice to the defendant in which he itemized his billing, indicating the gross settlement amount, allowable expenses, and an attorney's fee of $484,446.10 that represented 40 percent of the gross settlement proceeds. In response, the defendant returned the invoice to the plaintiff with a note as follows: “Dear Larry—The enclosed statement is acceptable with the exception of your legal fee. I authorize you to take $125,000 toward your legal fee. The remaining amount needs to be placed in an escrow account with both our names on the account until Laura Mooney's fee is paid and my objection to the 40 [percent] fee is resolved. Yours—Darcy Stevens Yuille.”

The record thereafter reflects an exchange of correspondence that did not bring a final resolution to the fee dispute. Having failed to reach an accord, the plaintiff, on March 9, 2005, filed a three count complaint against the defendant as follows. The first count sets forth a breach of contract claim based on the written fee agreement and the result achieved in binding arbitration. The second count, although captioned “unjust enrichment,” sets forth a claim more properly viewed as one in quantum meruit, as it repeats the assertions of the first count and adds to them the statement that “[t]he reasonable value of the Plaintiff's services was $438,413.17.” The third count, captioned“Bad Faith,” repeats the essential allegations of the first count and adds to them the claim that the defendant's conduct was “intentional, willful, in bad faith and in reckless disregard of the injury, financial damage and emotional distress to the Plaintiff....” Through this action, the plaintiff claimed money damages, attorney's fees, punitive damages, equitable relief, interest and costs. In response, the defendant filed an answer and two special defenses to all counts. In her first special defense, she alleged that the fee agreement was unenforceable as a matter of law because it violated the prescriptions of § 52–251c. In her second special defense, she alleged that the fee sought by the plaintiff was excessive and unconscionable. The plaintiff replied to the special defenses with a general denial of their allegations. Notably, the plaintiff did not allege, by way of reply, that the defendant had waived the protections of § 52–251c or that she had ratified the contract by her conduct subsequent to entering into it.

Following the evidentiary portion of the trial and argument by counsel, the court instructed the jury, inter alia, on the laws of contract and unjust enrichment. With respect to the contract claims set forth in the first and third counts, the court provided a standard instruction regarding the law of contract to include a discussion, generally, of the law relating to the existence and breach of contract and an overview of the law of damages for a breach of contract. With respect to the third count, based on an intentional or reckless breach, the court provided a general instruction on the law of punitive damages. Following its charge on the plaintiff's complaint, the court discussed the claim set forth in the defendant's first special defense that the contract violated the provisions of § 52–251c. In this part of its instruction, the court recited the fee limiting provisions of the statute. The court also instructed the jurors that the provisions of § 52–251c would be applicable in the event that they find that the plaintiff and the defendant had entered into a contract that was later breached by the defendant. In pertinent part, the court stated: “The action which the plaintiff brought on behalf of defendant Yuille included claims covered by the statute. Accordingly, the provisions of the statute apply to the contingent fee agreement between the plaintiff and defendant Yuille.” Immediately thereafter, the court instructed the jury on the law of waiver, informing the jury that the law contemplated that a party could waive the protections of the fee cap statute and that, if the jury found that the defendant had waived the statutory protections, the plaintiff's right to recover compensatory damages would not be so limited. The court stated, as well, that if the jury found that the defendant had not waived the statutory cap provisions, the plaintiff's right to compensatory damages would be limited by the statutory terms.

As a supplement to its charge and in order to provide the jury a pathway to its deliberations and decision making, the court submitted a series of interrogatories to the jury. In sum, the jury found, with respect to the first count, that the plaintiff and the defendant had entered into a contingency fee agreement and that the agreement was not excessive, unconscionable and unenforceable. The jury found, as well, that the defendant did not waive the provisions of § 52–251c and, therefore, as instructed, awarded the plaintiff the sum of $139,404.94 less the sum of $125,000 already paid to the plaintiff, representing the maximum fee allowable under the fee cap statute.

As to the third count alleging that the defendant's breach of contract was intentional, the jury, in response to an interrogatory, found that the defendant's breach was “wanton, malicious and egregious with reckless disregard for [the] [p]laintiff's property right” and, accordingly, awarded punitive damages to the plaintiff in the amount of $75,000. Finally, the jury awarded prejudgment interest to the plaintiff in the amount of $37,639.33. With respect to interrogatories concerning the second count, captioned “Unjust Enrichment,” the jury was instructed to answer the relevant interrogatories only if it found in favor of the defendant on the plaintiff's contract claim. Accordingly, the jury did not answer interrogatories regarding the defendant's conduct on the issue of unjust enrichment.

Following the jury's verdict, the plaintiff filed a motion captioned “Motion to Reconsider and Set Aside Finding of Applicability of [General Statutes] § 52–251c,” in which he asserted that the fee cap statute was not applicable to his handling of a bad faith claim against the defendant's employer, the hospital, that its application under these facts is unconstitutional and that the fee agreement was binding on the plaintiff and the defendant because the plaintiff had completed performance of his obligations under the agreement. In response, the defendant filed an objection to the plaintiff's motion. She also filed a separate motion to set aside the verdict and for judgment notwithstanding the verdict through which she argued that the verdict on the first count should be set aside on the ground that the contract was void as against public policy and therefore not enforceable. She claimed, as well, that by allowing the jury to consider the plaintiff's contract claims while also instructing the jury to limit any damages award in accord with the provisions of the fee cap statute, the court impermissibly reformed the contract. Additionally, the defendant claimed that, for the same reasons as she urged the court to set aside the jury verdict on the first count, the jury's determinations and awards regarding her bad faith breach of the contract could not stand. She also urged the court to set aside the awards of punitive damages and prejudgment interest on the basis of evidentiary insufficiency. After the court denied counsel's postverdict motions and rendered judgment in accordance with the jury's verdict, these appeals ensued.

We first consider the issue raised in the plaintiff's appeal that § 52–251c does not apply to the fee agreement under scrutiny. Because that issue requires us to interpret the statute and to determine whether the undertaking for which the plaintiff and the defendant entered into a fee agreement was covered by the statute, our review is plenary. See Yeager v. Alvarez, 134 Conn.App. 112, 118, 38 A.3d 1224 (2012).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Fennelly v. Norton, 294 Conn. 484, 492–93, 985 A.2d 1026 (2010).

Section 52–251c (a) expressly pertains to claims or civil actions “to recover damages resulting from personal injury, wrongful death or damage to property” and provides for a cap on fees for such cases. Additionally, subsection (b) of the statute provides in relevant part: “In any such contingency fee arrangement such fee shall be the exclusive method for payment of the attorney by the claimant....” GeneralStatutes (Rev. to 1997) § 52–251c (b). The thrust of the plaintiff's argument regarding the applicability of the statute is that he undertook representation of the defendant in a bad faith claim against the hospital and that such a claim does not meet the statutory definition of a “claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property....” General Statutes § 52–251c (a). Contrary to the plaintiff's assertion, the complaint filed on behalf of the defendant against her hospital employer sought damages for personal injury. The plaintiff makes no argument that the complaint was not a civil action, nor does he deny seeking to recover damages from the defendant. He asserts, rather, that he was not seeking damages for personal injury but rather for the bad faith handling of her workers' compensation claim. In making this argument, however, the plaintiff appears to ignore the pleadings he filed. There, he alleged in each count, whether framed as wrongful discharge, reckless/intentional conduct or as a CUTPA violation: “As a further result of the aforesaid acts and omissions of the defendant, the plaintiff has and continues to sustain injury, including: (a) the exacerbation of her medical condition; (b) physical, mental and psychological stress; (c) embarrassment and humiliation; and, (d) emotional distress.” And, as a result of these injuries, the complaint included a demand for monetary damages on behalf of Yuille. Under any reasonable and common definition of the terms, these allegations represent claims for personal injuries for which monetary damages were sought. In sum, the complaint filed by counsel for Yuille against the hospital was a civil action in which counsel sought to recover damages resulting from personal injury. Such a complaint squarely falls within the ambit of § 52–251c.

The plaintiff next claims that § 52–251c as applied to the underlying facts, is unconstitutional as a violation of article first, § 10, of the United States constitution. Although the constitutionalcontract impairment language appears to be absolute, jurisprudence on this portion of the constitution has established that the constitutionality of state action affecting contract rights must be assessed in context. The Supreme Court of the United States has stated: “Unlike other provisions in [article first], it is well settled that the prohibition against impairing the obligation of contracts is not to be read literally.” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 502, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987); see also Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 428, 54 S.Ct. 231, 78 L.Ed. 413 (1934). “Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether that impairment is permitted under the Constitution.” United States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). “The threshold inquiry is whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” (Internal quotation marks omitted.) Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983). Factors to be weighed are the severity of the impairment, the extent to which it frustrates a party's reasonable contractual expectations and the extent to which the subject matter of the impairment has been regulated in the past. Id. If the impairment is minimal, the inquiry may end at the embryonic stage. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978); Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 302, 554 A.2d 1065 (1989). Furthermore, our Supreme Court has previously stated that “[ § 52–251c] was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees.” Berry v. Loiseau, 223 Conn. 786, 830 n. 22, 614 A.2d 414 (1992). Legislative history is in accord. See 48 S. Proc., Pt. 14, 2005 Sess., p. 4409, remarks of Senator Andrew J. McDonald (“because of the strong public policy interests we have as a state, we have put parameters around the circumstances under which that statutory formula can be exceeded”); see also 29 S. Proc., Pt. 10, 1986 Sess., pp. 3465–66, remarks of Senator Thomas F. Upson; 29 H.R. Proc., Pt. 16, 1986 Sess., pp. 5831–33, remarks of Representative Robert G. Jaekle.

In sum, because the constitutional prohibition regarding the impairment of contracts is not absolute, in a challenge of any government limitation on contracts, we examine the extent of the impairment caused by the imposition of statutory limitations and assess the propriety of those limitations in light of the stated purpose of the legislation. Here, as has been noted, the remedial purpose of the legislation is to protect the public from overreaching attorneys. The impairment does not restrict a client's access to counsel; rather, it limits the fees counsel may charge in specified circumstances. The plaintiff has not demonstrated, nor can we find, that the fee cap statute constricts the availability of competent and willing attorneys, nor has the plaintiff demonstrated that such limitations serve to dissuade members of the public from availing themselves of legal representation. Given the stated regulatory purpose of the statute and the public benefit it espouses, we yield to the judgment of the legislative branch regarding this modification of a person's right and reciprocally, that of an attorney, to freely contract with one another for the undertaking of legal representation on a contingency fee basis in certain types of civil actions. In short, the fee cap statute does not constitute an unconstitutional deprivation of the right to contract.

Also, with respect to the plaintiff's article first, § 10 argument concerning the impairment of contracts, the plaintiff argues that the revision of the statute in effect at the time he and the defendant entered into the agreement unconstitutionally infringed on their ability to contract because it did not include a provision permitting a client to waive the fee cap as the current revision of the statute now does. The simple answer to the plaintiff's claim in this regard is that the issue was made moot by the court's charge to the jury on the issue of waiver. The record reflects that the court charged the jury that the defendant could, in fact, waive the fee cap provision and, in response, the jury made a specific finding that the defendant did not waive the statutory provisions. Accordingly, whether the statute at the time was constitutionally infirm by not including a provision for waiver is irrelevant in this instance, as its alleged infirmity did not burden the plaintiff's case.

The plaintiff next claims that the court incorrectly refused to instruct the jury on the issue of ratification. He claims that there was an evidentiary underlayment for a charge on ratification because the defendant admitted, during her testimony, that even though she had been aware of the fee cap statute and that the agreement called for fees greater than allowed by the fee cap, she nevertheless continued to utilize the plaintiff's services, which resulted in the beneficial arbitration award. Therefore, the plaintiff claims, even if the fee agreement violated the limitations of § 52–251c, the defendant should be prevented from asserting those limitations in defense of counsel's fee claims because, by her behavior, she ratified the terms of the fee agreement. In response, the defendant claims that the plaintiff was not entitled to a jury instruction on ratification because he did not specially plead it and because the evidence was insufficient to warrant such a charge.

“As a general rule, [r]atification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account.... Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances.... In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates.... Since ratification in a given case depends ultimately upon the intention with which the act or acts, from which ratification is claimed, were done, and since intention is a mental fact and its finding clearly one of fact, the finding in a given case of ratification is one of fact....” (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 530–31, 757 A.2d 1103 (2000); see also Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 639 n. 21, 850 A.2d 145 (2004). “[T]he jury may find that a party ratified a transaction only if the jury finds an intent to ratify it.” Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 186, 510 A.2d 972 (1986). Furthermore, ratification requires “acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances....” Ansonia v. Cooper, 64 Conn. 536, 544, 30 A. 760 (1894); see also Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979); Cohen v. Holloways', Inc., 158 Conn. 395, 411, 260 A.2d 573 (1969). Because this claim involves the legal propriety of the court's jury instructions, our review is plenary. See Pickering v. Rankin–Carle, 103 Conn.App. 11, 19, 926 A.2d 1065 (2007).

In the procedural context of this claim, we need not explore whether the doctrine of ratification applies to an agreement that is against public policy. Rather, we decide this issue, as did the trial court, on the ground that the issue was not properly raised by the plaintiff. The record reflects that the court denied the plaintiff's request to instruct the jury on the issue of ratification because the plaintiff had not alleged ratification in response to the defendant's special defense of the fee cap statute. The court reasoned that because the plaintiff had failed to plead the defendant's alleged ratification, he was not entitled to the requested charge. Indeed, our review of the pleadings reveals that although the defendant raised, as a special defense, that the fee agreement violated the fee cap provisions of § 52–251c, the plaintiff filed only a general reply denying the allegations of the answer and special defenses. Practice Book § 10–47, however, entitled “Evasive Denials,” provides: “Denials must fairly meet the substance of the allegations denied. Thus, when the payment of a certain sum is alleged, and in fact a lesser sum was paid, the defendant cannot simply deny the payment generally, but must set forth how much was paid to the defendant; and where any matter of fact is alleged with divers circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied.” Additionally, Practice Book § 10–50, entitled “Denials; Special Defenses,” provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged....”

The teaching of these provisions is that matters of avoidance must be specially pleaded. Here, even though the defendant raised as a special defense that the fee agreement violated the fee cap statute, the plaintiff merely denied the special defense and made no claim that the defendant had ratified her obligation under the agreement. Thus, we agree with the trial court that by failing to specifically reply to the special defense regarding the fee cap statute, the plaintiff failed, as well, to put the question of ratification at issue at trial. Our conclusion in this regard does not reflect a rigid adherence to form over substance. Rather, it comports with the notion that parties to litigation should be adequately apprised of each other's claims in order to pursue and defend their causes properly. In this instance, if the plaintiff had replied to the defendant's special defense of the fee cap statute with a claim that the defendant had, nevertheless, ratified the agreement, the defendant could, in turn, have raised the issue of whether ratification applies to an agreement against public policy, and the court, in turn, could have confronted and resolved the issue away from the pressure of an ongoing trial. The notion that rules of procedure play a meaningful role in assuring a fair litigation process is particularly apt in the circumstance of this case. Having determined that the fee agreement at issue was subject to the strictures of § 52–251c and constitutionally proper, and that, by its terms, it required payment of fees greater than allowed by the statute, and having determined that the court properly declined to charge the jury on the issue of ratification, we turn next to the issues raised by the defendant's cross appeal.

The defendant claims, on cross appeal, that the verdict on the first count must be set aside as violative of public policy. Specifically, she claims that the court should not have submitted the first count to the jury because the contract violated the prescriptions of § 52–251c and that the court effectively reformed the parties' contract by allowing the jury to consider the plaintiff's contract claim while limiting the amount of allowable damages to the level of fees prescribed by the fee cap statute. The defendant also claims, in regard to the third count, which alleged a wilful breach of the fee agreement, that the evidence was insufficient to support the jury's awards of punitive damages and prejudgment interest. Because we agree with the defendant's claims regarding the submission of the contract to the jury, we need not reach the subordinate issues regarding punitive damages and interest flowing from the defendant's wilful breach of the contract. Because the defendant's first claim concerns the propriety of the court's instructions to the jury, thus raising a question of law, our review on appeal is plenary. See Pickering v. Rankin–Carle, supra, 103 Conn.App. at 19, 926 A.2d 1065.

The defendant argues that by submitting the plaintiff's contract based claims to the jury, the court effectively permitted the jury to enforce a contract that violates public policy. One could argue, however, that because the court limited the damages the jury could assess to the level of fees prescribed by the statute, the court's instruction did not, in fact, invite enforcement of a contract in violation of public policy. Rather, it could be argued that the court simply limited the damages to allowable amounts, thus conforming the terms of the fee agreement to law. On this point, we agree with the defendant.

We turn first to the language of the statute. In pertinent part, § 52–251c provides: “(b) In any such contingency fee agreement such fee shall be the exclusive method for payment of the attorney by the claimant and shall not exceed an amount equal to a percentage of the damages awarded and received by the claimant or of the settlement amount received by the claimant as follows: (1) Thirty-three and one-third per cent of the first three hundredthousand dollars; (2) twenty-five per cent of the next three hundred thousand dollars; (3) twenty per cent of the next three hundred thousand dollars; (4) fifteen per cent of the next three hundred thousand dollars; and (5) ten per cent of any amount which exceeds one million two hundred thousand dollars.” There is no dispute in the case at hand that the fee agreement called for a contingency fee of 40 percent, an amount greater than allowed by the fee cap statute. We believe, therefore, that the import of the statutory language is that a fee agreement that required payment of fees greater than permitted by the fee cap statute was not enforceable because such a contract would fall within the definition of “any such contingency fee agreement,” which, by the language of § 52–251c, would be the “exclusive method for payment of the attorney by the claimant....” General Statutes (Rev. to 1997) § 52–251c (b).

Public policy considerations support this view. If, as has been stated, the purpose of the legislation when enacted was to protect the public from overreaching attorneys, enforcement of an overreaching fee agreement would violate such a policy even where recovery is limited to the statutory amounts because such a result would create no disincentive for an overreaching attorney and no corresponding public benefit. In other words, if an attorney could be assured of a fee no less than the amount provided by the fee cap statute, such an attorney, if unscrupulous, would have no reason, based in law, to limit fees to the statutory prescribed amount because enforcement of the contract in accordance with the statutorily permitted amount would simply become the lowest possible fee recoverable. That outcome, however, does not comport with the statute's stated purpose.

The statute in question, § 52–251c, was amended in 2005 to permit, under prescribed circumstances, a fee agreement providing for a higher percentage recovery where the statutory range has been waived. Additionally, the 2005 amendment provided the following new subsection: “No fee shall be payable to any attorney who seeks a fee that exceeds the percentage limitations of subsection (b) of this section unless the claimant has waived such limitations pursuant to this section and the contingency fee agreement complies with the requirements of subsection (e) of this section.” Public Acts 2005, No. 05–275, § 1.

The plaintiff may argue that this amendment represents a change in the statute and that because the amendment was not enacted until after the fee agreement under scrutiny was signed, the agreement is enforceable. Although a review of legislative history suggests that the 2005 amendment represented a change from the original act: “This changes the rules on that, makes the fee in excess of one-third impossible or illegal and provides much stricter scrutiny of fee agreements, which exceed the existing tort reform limits, which apply to all negligence cases”; 48 H.R. Proc., Pt. 31, 2005 Sess., p. 9445, remarks of Representative Michael P. Lawlor; we do not believe that the 2005 amendment reflected any change in the policy of the act. In other words, by tightening the language of the statute in 2005, the General Assembly simply made explicit what public policy considerations suggest was implicit in the original legislation requiring that attorneys must comply with the mandates of the fee agreement statute in order to be paid on the basis of written fee agreements they ask clients to execute. Indeed, a review of the legislative history suggests that the primary impetus for the 2005 amendment to the statute came from a Superior Court decision in which Judge Vertefeuille had opined that the statute might be constitutionally infirm if it did not permit parties to waive its fee cap provisions. See In re Estate of Salerno, 42 Conn.Supp. 526, 630 A.2d 1386 (1993). From the report of judiciary committee chairman McDonald, it appears that the amendments, in this regard, were intended to accommodate Judge Vertefeuille's concerns but also to very tightly and narrowly prescribe the basis on which waiver could be effectuated and the consequences for charging an amount in excess of the fee caps without a valid waiver. In reporting to the Senate, Senator McDonald stated: “And in particular ... this section arises from the situation where individuals who contract with attorneys, who have contingency fee arrangements, sometimes exceed the statutory attorney's fee schedule that currently exists in our law. We tried to take that law, and also address the decision in [Salerno ], which essentially said that private individuals have an opportunity, if they wish, to exceed the statutory framework for attorney's fees. And in this section ... we acknowledge that fact, but because of the strong public policy interests we have as a state, we have put parameters around the circumstances under which that statutory formula can be exceeded.... [I]n no circumstances, if the statutory framework that currently exists is going to be exceeded, could an attorney enter into a contingency fee arrangement with a client that would compensate that attorney for more than 33 1/3 [percent] of a recovery or judgment.” 48 Sen. Proc., Pt. 14, 2005 Sess., pp. 4408–4409, remarks of Senator McDonald.

In the case at hand, however, by permitting the jury to consider the breach of contract claim based on an improper fee agreement and then limiting the plaintiff's damages to amounts prescribed by the fee cap statute, the court effectively reformed the fee agreement to permit a recovery premised on a contract that violated public policy. Based on the history of the act and the public policy it embraces, we believe, there was no legal or policy laden basis for the court to have reformed the contract so as to make a contract against public policy nevertheless enforceable. Rather, the court should not have permitted the jury to consider the plaintiff's contract based claim. Accordingly, the jury's verdict on the contract counts cannot stand.

Finally, we come to the defendant's cross appeal regarding punitive damages and prejudgment interest awarded pursuant to the jury's finding that the defendant wilfully and recklessly breached her contractual obligation to the plaintiff. Our assessment of this claim is guided by our reasoning regarding the contract claim set forth in the first count. In short, if the plaintiff is not entitled to recover on a contract that violates public policy, it is of no legal relevance that the defendant's breach may have been wilful because the contract, as written, imposed no legal obligation on her. Accordingly, the judgment as it relates to punitive damages and prejudgment interest, having no legal basis independent of the fee agreement, cannot stand.

The judgment in favor of the plaintiff on the breach of contract counts is reversed and the case is remanded with direction to dismiss those counts of the complaint.

In this opinion the other judges concurred.