Opinion
NNHCV136037659
01-27-2016
Victoria Steele v. Anthony Capuano
UNPUBLISHED OPINION
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#145)
Hon. Matthew E. Frechette, J.
The issue presented is whether this court should grant the defendant Anthony Capuano's motion for summary judgment on the ground that, as a matter of law, the defendant has been released from liability pursuant to a settlement between the plaintiff and the co-defendant City of New Haven. This court denies the defendant's motion for summary judgment.
FACTS
This case arises from a motor vehicle collision that occurred on July 17, 2012 between the plaintiff, Victoria Steele, and the defendant, Anthony Capuano. Steele alleges that due to Capuano's negligence in operating his vehicle, she suffered a number of physical injuries and economic losses. On April 12, 2013, Steele filed her initial complaint against Capuano for negligence. Capuano denied that he operated his vehicle in the course of his employment at the time of the collision in his initial unsigned response to Steele's interrogatories dated August 15, 2013. Capuano, then, made a supplemental discovery response, dated April 23, 2014, changing the response to state that he was operating his vehicle in the course of his employment at the time of the collision. Thereafter, Steele cited in Capuano's employer, the City of New Haven (City), as a second defendant on April 25, 2014.
On July 29, 2014, Steele filed an amended complaint as served, reflecting the addition of the City as a defendant. In this complaint, Steele added allegations that the City was Capuano's employer and a claim for vicarious liability against the City under the doctrine of respondeat superior. On November 6, 2014, Steele filed her second amended complaint against Capuano and the City to expand on her allegations against the City. Capuano and the City filed answers to Steele's second amended complaint on November 17, 2014 and November 24, 2014 respectively. Significantly, while the City admits to being Capuano's employer, it denies that Capuano was acting within the course and scope of his employment when operating his vehicle on July 17, 2012. On December 18, 2015, Steele filed a third amended complaint, removing the allegations against the City and the allegation that the City was Capuano's employer at the time of the collision. Pursuant to a covenant not to sue entered into with the City on December 18, 2015, Steele withdrew her cause of action against the City on December 21, 2015.
In response to the agreement between Steele and the City, Capuano requested permission to file summary judgment as this case is assigned for trial on March 1, 2016. On January 8, 2016, Capuano filed his motion for summary judgment. A memorandum of law and exhibits accompany his motion. Capuano moves for summary judgment on the ground that, as a matter of law, he has been released from liability pursuant to the settlement between Steele and the City. On January 13, 2016, Steele filed an opposition to Capuano's motion for summary judgment with exhibits. Oral argument on this matter was heard at the short calendar on January 25, 2016.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., at 821. " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013).
" Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " [T]he rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320-21.
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 381 [now § 17-46]. " While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996); see also Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them). In general, " [i]t is within the court's discretion whether to accept or decline [to accept] . . . supplemental evidence." (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 715, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
Capuano moves for summary judgment on the ground that, as a matter of law, the covenant not to sue releasing the City from liability also releases his liability. Capuano contends that releasing the City (principal) from liability necessarily releases him (agent) from liability. He relies on our Supreme Court's decision in Alvarez v. New Haven Register, 249 Conn. 709, 735 A.2d 306 (1999) that, on its face, holds that releasing the agent from liability releases the principal and suggests that releasing either releases the other. Capuano further argues that the covenant not to sue between Steele and the City has the same legal effect as a release, and therefore, it should be treated as a release and not a covenant to sue. Also, Capuano notes that Steele and the City entered into the covenant after Steele named the City as a defendant, defeating the purpose of a covenant not to sue; thus, there is more reason to legally treat the covenant as a general release. Capuano further claims that there is no factual dispute that he was operating his vehicle in the course of his employment with the City. In support of his motion for summary judgment, Capuano provides the following evidence: excerpts of Capuano's deposition testimony, a copy of the covenant not to sue (Covenant), and a copy of a letter from Chief Michael Grant.
In response, Steele maintains that this court should adhere to the explicit intent of the Covenant. She argues that the Covenant explicitly excludes Capuano as a beneficiary of the agreement with the intention of preserving her cause of action in negligence against Capuano. Steele further argues that the Covenant should not be treated as a general release given that she intended to extinguish her right of action against only the City while preserving her right of action against Capuano. She adds that entering into the Covenant with the City after citing in the City as a defendant is of no consequence to the Covenant's effect. Moreover, taking from the reasoning in Fleming v. Dionisio, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-6002255-S (February 7, 2013, Povodator, J.) (55 Conn.L.Rptr. 594), Steele contends that the Alvarez rule does not apply to the present case because there is factual dispute as to whether agency existed at the time of the accident, that the present case is distinguishable from the facts underlying Alvarez, and that the reciprocal language attached to the holding of Alvarez is dictum. In support of her memorandum in opposition to summary judgment, Steele provides the following evidence: a copy of the Covenant, excerpts of Capuano's deposition testimony, Capuano's unsigned, initial answers to interrogatories, Capuano's supplemental discovery response to interrogatories, and the City's answer to Steele's second amended complaint denying that Capuano was acting within the scope of his employment.
Because neither Steele nor Capuano have objected to any evidence offered and the evidence has met the threshold requirements for admissibility, the court may accept all evidence that both parties in the present case offer for purposes of summary judgment.
This court agrees that there is a factual dispute as to the existence of agency at the time of the collision. Capuano provides contradictory assertions as to whether he was acting within the scope of his employment when he was operating his vehicle. In his initial, unsigned answer to Steele's interrogatories, he denies that he was acting within the scope of his employment at the time of the accident. Then, in a supplemental discovery response, Capuano admits that he was acting within the scope of his employment at the time of the accident. After the City was cited in by Steele, Capuano maintained his position on the question of agency. Specifically, Capuano explained that he was on his way to repair a fire hydrant when the collision occurred. Although Capuano provided a letter from Chief Michael Grant stating that Capuano had permission on the day of the collision to use his own vehicle during working hours, this letter does not resolve the factual dispute given the inconsistencies in Capuano's statements regarding the purpose of operating his vehicle on July 17, 2012 and given, as Steele notes, the absence of other records documenting his purpose for driving during work hours on that day. Also, significantly, the City denied that Capuano was operating his vehicle within the scope of his employment in its answer to Steele's second amended complaint. Furthermore, in the Covenant, the City again denies that Capuano was acting within the scope of his employment. As the moving party, Capuano fails to demonstrate that there is no genuine dispute of material fact that he was operating his vehicle on July 17, 2012 within the course and scope of his employment.
Although this factual dispute exists, it is not dispositive of this court's determination of whether to grant Capuano's motion for summary judgment. The factual dispute as to agency, however, does set part of the foundation for this court's analysis of whether the rule in Alvarez applies to the present case, and therefore, entitles Capuano to judgment as a matter of law. This court agrees with the rationale applied in Fleming that the reciprocal language expressed in Alvarez is dictum and that release of the principal from liability does not release the agent from liability, especially in factually complex cases in which there is a dispute as to agency.
In Alvarez, the Supreme Court addressed the issue of whether a release agreement entered into with the agent also releases the principal from liability. The Court stated: " Both parties recognize that, in the absence of a specific statute, where the liability of a principal for a tort committed by his agent is predicated solely upon the doctrine of respondeat superior, a valid release of either operates to release the other." Alvarez v. New Haven Register, supra, 249 Conn. 715-16. The Court ultimately concluded that release of the agent from liability also releases the principal from liability as a matter of law. Id., at 716. As the Superior Court noted, however, in Fleming:
" The symmetry language was not essential to the outcome in Alvarez; it purported to be a statement of existing common-law principles in Connecticut including the directly-applicable principle that the release of an agent automatically constitutes a release of the principal (with respect to vicarious liability). Compare, Giacalone v. Housing Authority, 306 Conn. 399, 51 A.3d 352 (2012), wherein the majority opinion treated an earlier discussion of common-law principles (in Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008)) as a binding articulation/recognition of such principles that was tantamount to a holding, whereas the concurrence treated the statement as dictum and engaged in an analysis stating with no such presumption." (Emphasis in original.) Fleming v. Dionisio, supra, 55 Conn.L.Rptr. 598, *24.
Moreover, " [t]he automatic reciprocity/symmetry rule, as articulated in Alvarez, does not apply in factually complex situations, and especially in a case such as this where there is a substantial issue as to the existence of an agency relationship, and many of the policy reasons for the rule directly applied in Alvarez do not apply in a reverse situation such as present here." Id., 596. " One of the premises discussed in the Alvarez opinion is that a plaintiff is entitled to one, but only one, full recovery. Another premise is that the liability of a principal cannot be the liability of the agent such that once the agent's liability is satisfied there is nothing further to recover from the principal. Neither of these principles necessarily applies in the context of a release of an alleged principal. Synthesizing these points, it is doubtful whether Alvarez was intended to address a situation where there is a challenged if not wholly unsupportable assertion of an agency relationship and the alleged principal simply wants to buy peace." Id., 597.
As noted by other jurisdictions, " [A] master's vicarious liability is based entirely upon the underlying wrongful conduct of the servant, not upon any active wrongdoing by the master. Thus, release of the servant removes any foundation upon which to impute negligence to the employer." Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 248 (N.D. 1999) (addressing issue of whether agreement to release principal from liability also releases agent from liability); see also Jamerson v. Quintero, 233 Ariz. 389, 313 P.3d 532, 535 (Ariz.App.Ct. 2013) (" When a claimant stipulates to a judgment in favor of an agent, the agent thereby is adjudicated to have no liability and any vicarious liability of the principal necessarily falls away . . . Put simply, because the agent has been adjudicated not liable, as a matter of law, the principal is not liable." [Citations omitted.]); Vanderpool v. Grange Ins. Ass'n, 110 Wn.2d 483, 756 P.2d 111, 113 (Wash. 1988) (" When . . . a plaintiff settles with a solvent agent from whom he could have received full compensation, the very foundation of the principal's liability is undermined. A principal is only secondarily liable under a respondeat superior theory"). Our Supreme Court in Alvarez also articulated a similar understanding of vicarious liability and the doctrine of respondeat superior: " [A] principal whose liability rests solely upon the doctrine of respondeat superior and not upon any independent act of the principal is not a joint tortfeasor with the agent from whose conduct the principal's liability is derived . . . Essentially, aside from the relationship between the parties creating the doctrine of vicarious liability, the principal is not a tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault." Alvarez v. New Haven Register, supra, 249 Conn. 720-21. " By holding that § 52-572e [Release of joint tortfeasor] does not apply to vicariously liable defendants, the release of the agent removes the only basis for imputing liability to the principal." Id., 725.
Furthermore, it is significant that our Appellate Court in Addison v. Velez, 72 Conn.App. 402, 805 A.2d 762 (2002), declined to apply the holdings in Alvarez and in Cuhna v. Colon, 260 Conn. 15, 792 A.2d 832 (2002), to factually similar circumstances and legal issues as the present case. The Court in Addison interpreted Alvarez to address the issue of " whether, notwithstanding General Statutes § 52-572e, a release executed in favor of an employee operates as a matter of law to release the employer whose sole liability is premised on the doctrine of respondeat superior." (Internal quotation marks omitted.) Addison v. Velez, supra, n.4, 406. It concluded that Alvarez " held that the employer and employee are not joint tortfeasors pursuant to § 52-572e and, therefore, the employer is released from any derivative liability." Id. The Court also concluded that Cunha " similarly held . . . that a release executed in favor of a lessee also operates to release the lessor." Id. In determining that the facts at issue in Addison were distinguishable from those in Alvarez and Cunha, the Court found: " In the present case, unlike the situations in Alvarez and Cunha, the tortfeasor with direct and independent liability, as opposed to vicarious liability, claims the benefit of the release because he is named expressly in the release." (Emphasis added.) Id.
Based on the above legal principles and reasoning, releasing the City from liability does not automatically release Capuano from liability. Steele entered into the Covenant with the principal, the City, which extinguished any and all of her rights of against the City in relation to her current cause of action in exchange for settlement amount of $1,000,000. (As stated at oral argument, the plaintiff's injuries and damages are significant and may well significantly exceed the sum received from the City.) As evidenced by this agreement, the City bought its peace to be released from litigation in the present case and further action by Steele. Because the City cannot be found liable, only its alleged derivative liability falls away, which leaves Capuano's alleged direct and independent liability. If Capuano had entered a type of settlement agreement with Steele, that agreement would necessarily release the City because the agreement would remove the City's sole basis for liability under respondeat superior. Based on the legal operation and understanding of respondeat superior as a theory of vicarious liability, elimination of the City's derivative liability cannot eliminate Capuano's primary liability because the City's liability was neither premised on any independent action by the City nor on some joint tortious conduct by the City and Capuano. The City is only liable through Capuano's alleged negligence in hitting Steele's vehicle; removal of the City's liability does not in of itself remove this independent basis for Capuano's liability. Morever, the rule in Alvarez cannot apply in this case where the vicarious liability relationship is factually in dispute and, thus, the consequences flowing from this alleged relationship cannot be determined when its nature is uncertain. Furthermore, the rule in Alvarez does not apply under the present circumstances where Capuano, the tortfeasor with direct and independent liability, rather than the City, the tortfeasor with vicarious liabiilty, claims the benefit of the release. Therefore, the Covenant relieving the City from liability is not reciprocal to Capuano because release of the City does not resolve or extinguish Capuano's liability as a matter of law.
Other jurisdictions have similarly held that a plaintiff's agreement to release the principal from liability will not reciprocally release the agent from liability. See Vanderpool v. Grange Ins. Asso., 110 Wn.2d 483, 756 P.2d 111, 113 (Wash. 1988) (" We hold that settlement with a principal does not automatically release the primarily liable agent"); Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 248 (N.D. 1999) (" In Keator v. Gale, 1997 ND 46, 561 N.W.2d 286, we held the release of a master's vicarious liability does not, as a matter of law, release the directly negligent servant's primary liability"); Hamm v. Thompson, 143 Colo. 298, 353 P.2d. 73, 74 (Colo. 1960) (A case in point is Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705, 707, 126 A.L.R. 1194, where it was held that a master, who is liable under the doctrine of respondeat superior for injuries caused by his servant's negligence, is a tortfeasor with the servant, and a release of the master is not a release of the servant"); Kellen v. Mathias, 519 N.W.2d 218, 222 (Minn.App.Ct. 1994) (" [W]e conclude that the release of a vicariously liable defendant does not release the nonsettling defendant . . . No policy reason exists to release an agent where the principal is released, absent an intent to release both parties").
In addition, the Superior Court in Fleming highlighted that " [t]here is a strong public policy favoring settlement of litigation . . . and our appellate courts have recognized the importance of giving effect to the expressed intent of the parties in effectuating a settlement." (Citation omitted.) Fleming v. Dionisio, supra, 55 Conn.L.Rptr. 598-99, *27-28. " Settlement dollars are not the same as damages. Settlement dollars represent a contractual estimate of the value of the settling tortfeasor's liability and may be more or less than the proportionate share of the plaintiff's damages. The settlement includes not only damages, but also the value of avoiding the risk, expense, and adverse public exposure that accompany going to trial. There is no conceptual inconsistency in allowing a plaintiff to recover more from a settlement or partial settlement than he could receive as damages." (Internal quotation marks omitted.) Nelson v. Johnson, supra, 599 N.W.2d 251. " Courts in comparative negligence jurisdictions have recognized allowing settlement amounts to be deducted from jury verdicts would discourage, rather than encourage, settlements." Id. " If the plaintiff knew that any settlement reached would be deducted from the proportionate share owed to the plaintiff by another tortfeasor, the plaintiff would be less likely to settle. Similarly, tortfeasors might refuse to settle, hoping that their just share of damages would be reduced by the settlement amount paid by another tortfeasor." (Internal quotation marks omitted.) Id.
" [I]t would be anomalous to give the benefit of an advantageous settlement, not to the plaintiff who negotiated it, but to the non-settling tortfeasor. Had plaintiff made a disadvantageous settlement, she would have borne that consequence because her recovery against the non-settling defendant would have been limited to the amount of the non-settling defendant's fault. At minimum, symmetry requires that if the disadvantage of settlement is hers so ought the advantage be . . . Indeed, such a rule might well discourage settlement by the last tortfeasor on the reasoning that his exposure is limited to his degree of fault and even that might be reduced by reason of pre-existing settlements." Id. In the specific context of respondeat superior, " [T]he settlement may represent the principal's solvency rather than the fair value of the claim; or the settlement may represent a compromise due to uncertainty as to whether the principle of respondeat superior legally holds the defendant vicariously liable for the acts of the other defendant. Thus, a plaintiff should not be deprived of a cause of action against an active tortfeasor when the plaintiff has not intentionally surrendered the claim." Kellen v. Mathias, 519 N.W.2d 218, 223 (Minn.Ct.App. 1994).
Furthermore, our Supreme Court has explained: " The rules of vicarious liability however respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor . Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available and has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover." (Emphasis in original; internal quotation marks omitted.) Alvarez v. New Haven Register, supra, 249 Conn. 720. Our Supreme Court has also explained that principals are not joint tortfeasors in the true sense if their liability is premised solely on the doctrine of respondeat superior and, therefore, there is no right of contribution, only indemnification. Id., at 720-21.
In the context of release agreements, our Supreme Court noted that if a plaintiff's agreement to release the agent did not also release the principal from liability, " The agent . .., even after settlement with the injured party, would remain liable for indemnification to the principal . . . Only if protected from further liability would the agent be likely to settle. Furthermore, we do not believe that the legislature intended such a circuitous procedure." Id., 724-25. The North Dakota Supreme Court has elaborated on the danger of the circle of indemnity to which our Supreme Court alluded in Alvarez: " [A] circle of indemnity would be created if the release of the servant did not release the vicarious liability of the master: If the plaintiff recovered at trial from the non-settling master, the master would have a right of indemnity against the released servant, who, under the terms of the release, would have a right of indemnity against the plaintiff. Thus, the circle is completed, leaving the plaintiff with no additional recovery through the suit against the master . . . The release of the servant effectively precludes any meaningful recovery from the vicariously liable master." (Citation omitted.) Nelson v. Johnson, supra, 599 N.W.2d 249. " The result is vastly different when the master is released and the negligent servant is sued. Because the servant has no corresponding right to indemnity from the master, the circle of indemnity does not exist." Id.
In the present case, releasing Capuano from liability because of the City's release of liability would undermine the strong public policy encouraging settlement and discouraging litigation. The Covenant was intended to function as a settlement, not as a determination of the merits of Steele's case or of liability. Thus, Capuano's independent basis for liability remains despite the Covenant. To permit Capuano to benefit from the Covenant in which he was neither a beneficiary nor a negotiating party would defeat the purpose of the balance of risks and rewards of settlement. Steele compromised her rights against the City in exchange for a sum that estimated the risks/benefits of settlement; Steele took the risk of accepting a sum that may or may not reflect the actual value of her damages for the reward of securing a sum of money without the uncertain result of trial. Similarly, the City took the risk of paying a sum to Steele and foregoing a potential favorable verdict at trial for the reward of avoiding the adverse effects and costs of exposure through litigation.
Per the public policy underlying settlement, Capuano, as the non-settling defendant, cannot receive a windfall and be rewarded for compromises he did not make with the other parties involved. To allow Capuano to equally benefit from the Covenant would discourage settlements; multiple tortfeasors would hold out for settlement with the potential for a reduction or elimination of their liability and plaintiffs would not settle in the face of potentially recovering nothing or significantly less than their damages. Moreover, allowing settlements to impact all causes of actions against all defendants, absent an intention to do so, would undermine vicarious liability as means for plaintiffs to recover from a single tortfeasor. In addition, not reciprocally releasing Capuano's liability in light of the City's release would not have the same detrimental effect of circular indemnification as the reverse situation of the present case. Therefore, the policy of our law to encourage settlements and the operation vicarious liability under our laws support the conclusion that Capuano cannot benefit from the Covenant.
If, in the present case, a jury rendered a favorable verdict for a plaintiff after settlement with one of the tortfeasors and a jury awarded damages accordingly, the non-settling tortfeasor would not be without remedy in the face of such circumstances. The non-settling tortfeasor may file a motion for remittur on the grounds that the verdict was excessive such that the plaintiff would receive double recovery in light of a pretrial settlement. See White v. Byelas Irrevocable Trust, 64 Conn.App. 506, 512, 780 A.2d 989 (2001) (affirming absent contrary authority, General Statutes § 52-216a is the sole statutory authority for reduction of jury verdicts by a judge and affirming standard for reviewing trial court's conclusion that verdict was not excessive as set out in Mauro v. Yale-New Haven Hospital ); Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 590-91, 627 A.2d 443 (1993) (" [W]e must consider whether the trial court correctly concluded that the jury verdict, when added to the amount of the pretrial settlement, was not excessive. On appeal, the test to be applied is whether the verdict so shocked the conscience as to compel a reviewing court's conclusion that it was due to partiality, prejudice, or mistake . . . The verdict must fall somewhere within the necessarily uncertain limits of fair and unreasonable compensation in the particular case" [citation omitted; internal quotation marks omitted]).
The Superior Court in Fleming also emphasized the importance of honoring the intent of settling parties: " The document implementing the settlement, whether characterized as a release or as a covenant not to sue, was intended not to benefit defendant, and nothing in Alvarez suggests that the common-law rule articulated therein was intended to supersede the explicit intent of the parties in effectuating settlement." Fleming v. Dionisio, supra, 55 Conn.L.Rptr. 596, *9. " Ultimately, however, that distinction [between a covenant not to sue and a release] is artificial here, because the very characterization of the instrument as a covenant is (would be) based on the expressed intent overriding the use of language facially suggestive of a status as a release. To put it differently: only if there is a difference in outcome between covenant and release, and only if the express intent overrides the formalism of a release, might characterization as a covenant be potentially determinative." (Emphasis in original.) Id., 597. " [T]he effect of the release depends upon the contracting parties' intent regarding release of other potentially liable parties." Sims v. Honda Motor Co., Ltd., 225 Conn. 401, 403, 623 A.2d 995 (1993). " The trial court may consider extrinsic evidence of the parties' intent regarding the scope of the release regardless of whether the court determines that the language of the release is ambiguous." Id., 419; see also Addison v. Velez, supra, 72 Conn.App. 405-06 (applying intent rule to interpret intent of release agreement allegedly obtained by fraud).
The Alvarez opinion does not affect the distinction between a general release and a covenant not to sue, namely, that a covenant not to sue is a mechanism by which a plaintiff can preserve a cause of action against another tortfeasor and a general release served to relieve all tortfeasors of liability. Alvarez v. New Haven Register, 249 Conn. 709, n.10, 725, 735 A.2d 306 (1999) (" Although at common law a release of one joint tortfeasor released the other tortfeasors, a covenant to sue did not . . . Because the present case did not involve a covenant not to sue, this opinion does not have any impact on the viability of that mechanism as a means by which an injured party may seek full recovery against the employer after collecting a portion of damages from the employee" [citations omitted]).
In the present case, the intent of the Covenant is clear and has not been challenged by either party. As a result, this court does not need to apply the intent rule as articulated in Sims and Addison or attempt to infer intent. Morever, the distinction between a covenant not to sue and a release is artificial when the explicit intent of the negotiating parties was to exclude Capuano from the Covenant, preserve Steele's rights against Capuano, and resolve only the potential causes of action by Steele against the City. Thus, the benefits and burdens of the Covenant are limited to Steele and the City. To conclude otherwise and to undermine the unambiguous intent of the settling parties would, again, be contrary to our public policy of encouraging settlement, especially when no party has produced extrinsic evidence for this court's consideration that would require closer scrutiny of the Covenant. As noted, settlement with a principal can represent various motives and interests, none of which should or would deprive a plaintiff, like Steele, of a cause of action against an active tortfeasor, like Capuano, absent an intention to surrender the claim. Also, to conclude that the Covenant benefits Capuano despite its clear exclusion of Capuano, would run afoul of the legal principles and rationales underlying the appropriate distribution of liability under the doctrine of respondeat superior as discussed earlier. Therefore, the Covenant must be enforced as stated, releasing only the City from liability and preserving Steele's cause of action in negligence against Capuano.
CONCLUSION
For the foregoing reasons, this court denies Capuano's motion for summary judgment as the Covenant entered into between Steele and the City does not reciprocally release him from liability and, therefore, Capuano is not entitled to judgment as a matter of law.