Opinion
No. CV 98 0352037 S
September 7, 2004
MEMORANDUM OF DECISION
I STATEMENT OF THE CASE
This action, having a return date of April 28, 1998, was instituted by the plaintiff, Vanliner Insurance Company, against the defendant, Thomas Fay, doing business as Thomas E. Fay Insurance Adjusters. The plaintiff seeks damages for the defendant's alleged failure to file a timely or effective notice of transfer of a workers' compensation claim to the second injury fund (the "fund"). The complaint is in two counts. The first count alleges breach of contract and the second count alleges negligence.
The defendant's third amended answer denies the plaintiff's allegations that he breached the parties' contract and further denies the plaintiff's allegations that he acted negligently. The defendant also asserts special defenses. The defendant asserts that the plaintiff's contract claims are barred by the statute of limitations pursuant to General Statutes § 52-281 and that the plaintiff's negligence claims are barred by the statute of limitations of General Statutes § 52-577. As to both counts, the defendant also asserts that the plaintiff failed to mitigate its damages. The plaintiff filed a reply generally denying the special defenses.
The defendant's answer also asserts collateral estoppel as a special defense. This special defense was not raised during trial or in the defendant's post-trial memoranda, and therefore, the court considers this defense abandoned. In response to the second count of the complaint, the defendant also asserted contributory negligence as a special defense. The defendant withdrew the contributory negligence defense.
The case was tried to the court without a jury. At the end of the trial, the court issued a preliminary finding that, based on the agreement between the parties, the defendant was obligated to file the notice of transfer, the notice was not filed timely, and the failure to do so constituted a breach of the defendant's duty of care under the plaintiff's contract and negligence claims. The court also issued an order bifurcating the briefing schedule. The parties were ordered first to brief any remaining issues regarding liability, causation and the defendant's special defenses regarding same. After the court addressed these issues, the parties would then address the issues of damages and the defendant's mitigation claims as warranted.
II FINDINGS OF FACT
The court makes the following findings of fact. Some time prior to May 2, 1992, the plaintiff issued to an employer, Mail Contractors of America, Inc., a workers' compensation insurance policy covering this company's employees. On May 2, 1992, an employee of Mail Contractors, Robert Anastasio, was injured in a work-related accident.
On or about May 18, 1992, the plaintiff and the defendant agreed that the defendant would represent the plaintiff before the Connecticut workers' compensation commission (the "commission") regarding Anastasio's claim. More specifically, the parties agreed that the defendant would adjust, investigate, and negotiate Anastasio's workers' compensation claim on behalf of the plaintiff and the plaintiff's insured, Mail Contractors. The evidence further established that the defendant accepted this responsibility, and that the plaintiff retained ultimate decision-making control over the file. Thus, the court finds that the plaintiff proved, by a preponderance of the evidence, that a principal-agent relationship existed between the plaintiff and the defendant. The defendant's positions to the contrary are entirely without merit. See generally McDermott v. Calvary Baptist Church, 263 Conn. 378, 384, 819 A.2d 795 (2003) ("three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking and (3) and understanding between the parties that the principal will be in control of the undertaking" ([internal quotation marks omitted)).
During the course of the defendant's work, he determined that Anastasio's claim was eligible for transfer to the fund. The parties agreed that the defendant would seek an agreement from Anastasio's attorney necessary to transfer the claim to the fund as allowed by Connecticut statute. See General Statutes § 31-349(b). If the transfer were accepted by the fund, the fund would assume responsibility for providing workers' compensation benefits to Anastasio after the first 104 weeks of compensation as provided under General Statutes § 31-349(b). In 1994, this statute required that the notice of transfer and supporting documentation be filed "no later than ninety days before the expiration of the first one hundred and four weeks of disability."
As acknowledged by the defendant in a letter dated September 9, 1992; (exhibit 10); he assumed the responsibility to give written notice of the plaintiff's request to transfer Anastasio's claim to the custodian of the fund. The defendant gave this notice in a notice letter dated February 1, 1994. (Exhibit 15.) This notice was received by the fund on February 2, 1994. The notice indicated that the "date of loss" was "05/02/92" and that "Mr. Anastasio was paid temporary total disability from 05/03/92 to the present." The notice was accompanied by the agreement to transfer the claim. This agreement was prepared by the defendant's office. The agreement was executed by Anastasio himself and by the defendant on behalf of the plaintiff and the employer. The agreement identified "05/03/92" as the "DATE WHEN INCAPACITY BEGAN."
In 1998, the commission held a hearing on Anastasio's workers' compensation claim. The workers' compensation commissioner concluded that Anastasio was totally disabled from his work-related injuries. The commissioner also found that workers' compensation benefits had been paid to Anastasio continuously from May 3, 1992 and that Anastasio's disability commenced on May 3, 1992.
The commissioner further concluded that based on a disability commencing on May 3, 1992, the ninetieth day prior to the expiration of the first 104 weeks of disability was January 31, 1994. The commissioner, therefore, found that in order to meet the notice requirements of General Statutes § 31-349, the notice of transfer had to be filed by January 31, 1994. Because the notice delivered by the defendant to the fund was not received until February 2, 1994, the commissioner held that this notice was untimely under the provisions of General Statutes § 31-349 as it existed at that time. The commissioner's decision was appealed to the compensation review board and to the Appellate Court. All the findings of the commissioner were upheld on appeal. See Anastasio v. Mail Contractors of America, Inc., 69 Conn.App. 385, 794 A.2d 1061, appeal denied, 261 Conn. 914-15, 806 A.2d 1053 (2002).
In July 1995, the notice requirements of General Statutes § 31-349 were amended. Two aspects of these amendments are relevant here. First, the 1995 amendments changed the time period within which an employer must file a notice of intent. The amended statute provided that the notice must be delivered "no later than ninety days after completion of payments for the first one hundred and four weeks of disability." (Emphasis added.) Second, the notice had to be accompanied by a $2,000 notification fee. These provisions of the amended statute were applied retroactively, and therefore, they became applicable to the filing of the notice of transfer in this case. See Badolato v. New Britain, 250 Conn. 753, 757-61, 738 A.2d 618 (1999).
As calculated under the amended statute, the ninetieth day after the completion of the first 104 weeks of disability would have been in July 1994. Consequently, under the amendment, the February 1994 notice was timely. However, the filing was not complete because the $2,000 notification fee required under the amendment was not paid. The effect of this deficiency was addressed by the Appellate Court in Anastasio v. Mail Contractors of America, Inc., supra, 69 Conn.App. 397-400. The Appellate Court explained that the employer and the plaintiff-insurer could not have been expected or required to pay $2,000 when the notice was filed in February 1994 because this notification fee did not become a requirement until July 1995. Id. However, the Appellate Court concluded that the fee nevertheless should have been paid in July 1995 when the amendment became effective or at least within a reasonable period of time thereafter. Id. The court stated: "Without deciding exactly what would have been a reasonable time here, we conclude that allowing more than six years to pass without paying the required fee was not reasonable." Id., 399-400.
In summary, as a result of the commissioner's decision, as upheld on appeal, the fund did not accept a transfer of Anastasio's claim, and the plaintiff remained liable for workers' compensation benefits under the claim. There is no dispute that Amastasio suffered injuries that were otherwise transferable to the fund. In this action, the plaintiff seeks compensation from the defendant for the damages that would have been avoided if the claim had been successfully transferred to the fund. The court will make further factual findings as necessary to address the legal issues raised by the parties.
III DISCUSSION A LIABILITY AND CAUSATION
As previously stated, the court has found that based on the agreement between the parties, the defendant was obligated to file the notice of transfer, the notice was not filed timely, and the failure to so file constituted a breach of the defendant's duty of care under the plaintiff's contract and negligence claims. The defendant knew that the transfer was required to be filed "no later than ninety days before the expiration of the first one hundred and four weeks of disability." Consequently, the defendant further knew he had to determine when Anastasio's disability began in order to calculate the deadline date for filing the notice.
The court further finds that the plaintiff relied on the defendant to investigate, prepare, and submit the information necessary to transfer the claim to the fund on a complete and timely basis. Indeed, the defendant acknowledges, he "was an expert in adjusting workers' compensation claims," and that as the insurance adjuster involved in the case, the plaintiff relied on him to determine when the notice was required to be filed. (See defendant's memorandum of law in support of motion for reconsideration of court ruling re: liability, p. 3.)
The evidence establishes that the defendant documented in his files that Anastasio's date of injury was May 2, 1992, and that Anastasio never returned to work after the accident. The date of injury was reflected in numerous communications by the defendant to the plaintiff, to the commission, and to Anastasio's attorney. In many of these communications, the defendant also stated that Anastasio received workers' compensation disability benefits continuously from May 3, 1992.
The notice of transfer by the defendant also states that the date of loss is May 2, 1992 and that "Mr. Anastasio was paid temporary total disability from 05/03/92 to the present." The agreement submitted with the notice of transfer was prepared and signed by the defendant. The agreement explicitly states that Anastasio's incapacity began on May 3, 1992. As previously explained, the commission found that Anastasio's disability began on May 3, 1992.
Thus, the facts of the case pointed to various dates as being potential "initial disability" dates. The accident occurred on May 2, 1992 and Anastasio never returned to work after the accident. The payment of temporary total disability benefits began on May 3, 1992. These payments can be paid, but by definition are not ordinarily paid if the employee is not "disabled." The defendant relies on information in his records pointing to incapacity beginning on May 5, 1992. Thus, the crucial question here is whether, under all the facts the defendant knew or should have known, it was reasonable for him to file the notice of transfer on February 2, 1994 (relying on a May 5, 1992 date) or earlier.
On the basis of his expertise, the defendant knew or should have known about the significance of a timely filing of the notice and the serious consequences of an untimely filing. For these same reasons, he knew or should have known that the initial date of disability presents a factual issue subject to review, adjudication and ultimate determination by the commission if contested. Based on these facts, the information available to the defendant, and his expertise in this area, the court concludes that his decision to file the notice of transfer on the latest possible date among those presented was clearly unreasonable and a breach of his duty of care.
The defendant argues that he did not breach a duty of care because he determined that May 5 was the initial disability date and this determination was reasonably based in the record. The court rejects this argument for two reasons. First, as discussed above, whether there was a reasonable basis for choosing May 5, 1992, as the initial date of disability is not the dispositive issue. This date, as well as the other possible dates, had some reasonable basis in the record. Under all the circumstances presented, selecting the latest alternative presented as the date to file the notice was an unreasonable exercise of the defendant's responsibility to file the notice in an appropriate and timely manner.
Secondly, the court must consider the weight and credibility of the defendant's testimony that he chose May 5, 1992 as the initial date of Anastasio's disability. This evaluation requires the court to consider, among other factors, the witness's demeanor, the consistency of his testimony with the other evidence, and his interest in the case. Based on this evaluation, the court does not find credible the defendant's testimony that he believed all along that May 5, 1992 was the date when Anastasio's disability began, and that contrary references in his files were mistakes. The more credible evidence indicates that the defendant realized that May 3, 1992 was the most likely date for the start of Anastasio's disability, but despite this understanding, he failed to file the notice on time.
There are numerous documents in the defendant's file prepared or signed by him indicating that the date of loss or the date of injury was May 2, 1992. In his first report to the plaintiff regarding Anastasio's claim, the defendant states: "Claimant apparently has been totally disabled from work since May 2, 1992." Even more on point, the agreement to transfer the claim prepared and executed by the defendant on the plaintiff's behalf stated that the incapacity began on May 3, 1992. There is no letter, note or any other record or document prepared by the defendant indicating that he believed that Anastasio's disability began on May 5, 1992.
The timeliness of the notice was first questioned by an agent of the fund in or about March 1997. (See exhibit 42.) Subsequently, this issue became a serious concern, prompting communications among the plaintiff, the defendant, and the law firm retained to represent the plaintiff regarding Anastasio's claim. Even after being requested to respond to these issues concerning the timeliness of the notice (see, for example, exhibits 45 and 48); there is no evidence that the defendant responded by indicating that he had made a determination that incapacity began on May 5, 1992. The first documented reference by either party suggesting that May 5, 1992 might be the initial date of disability is a letter dated October 14, 1997, written by the plaintiff's case manager, Charles Reams. (Exhibit 52. Thus, the evidence indicates that Reams first advanced May 5, 1992 as being the initial date of disability, and the defendant subsequently adopted this position as his own.
Furthermore, assuming arguendo that the defendant did determine May 5, 1992 as being the date of disability, the defendant acted unreasonably and breached his duty of care by making a mistake and indicating in the transfer agreement that incapacity began on May 3, 1992. Again, this agreement was prepared and executed by the defendant. Because the defendant was acting as the plaintiff's agent, this statement that incapacity began on May 3, 1992, represented an admission attributable to the plaintiff and was relied on by the workers' compensation commissioner in finding that incapacity commenced on May 3, 1992. (See exhibit 54, p. 5.)
The defendant also claims that any failure to file the notice on time did not proximately cause the plaintiff any injury because the fund denied the claim not because it was untimely filed, but because the $2,000 fee was not paid as required under the 1995 statutory amendments. The defendant's causation arguments are misplaced because this reference to or reliance on the 1995 amendments would have been entirely unnecessary if the defendant had filed the notice of transfer on time in 1994. The defendant's conduct, therefore, was a substantial factor in causing injury to the plaintiff because, but for the defendant's breach of his duty to timely file the notice of transfer, the fund would have accepted the claim.
The July 1995 amendments did provide an opportunity to rectify the earlier mistake, and the court finds that the plaintiff would have paid the $2,000 fee had this need been recognized at that time. However, in 1995, the plaintiff would only have considered the specific filing requirements under the amended statute and the payment of the $2,000 fee if the plaintiff or its attorneys knew and fully appreciated that there was an issue about the timeliness of the February 1994 filing. They did not. The defendant knew or at least should have known that there was a timeliness issue. For example, he is the one who recorded on the transfer agreement that the date of incapacity began on May 3, 1992. The evidence indicates that he knew that the filing was late. However, he failed to voice or acknowledge any problem with the filing at any time period sufficient for the plaintiff to pay the fee within a reasonable time.
Based on the defendant's undertaking to investigate, prepare, and submit the information necessary to transfer the claim to the fund, the defendant had a duty to inform the plaintiff about the untimely filing or his misstatements about the initial date of disability so that the plaintiff could reasonably and seasonably evaluate how to react or proceed. The court agrees with the plaintiff that under both its contract and negligence causes of action, the defendant breached his duty to represent the plaintiff fully and reasonably by failing to so inform the plaintiff.
More particularly, the evidence conclusively establishes that the defendant's undertaking to represent the plaintiff regarding Anastasio's claim generally and to file the notice of transfer specifically required him to inform the plaintiff about information reasonably necessary for the plaintiff to evaluate its position and to protect its interests. The defendant's arguments to the contrary are specious. Thus, the defendant should have informed the plaintiff that he filed the notice late. Alternatively, if the defendant knew that the May 3, 1992 date stated on the transfer agreement was wrong, as he contends, he failed to communicate this fact to his principal. The defendant's breach of his duty of care to reasonably advise the plaintiff about this crucial information precluded the plaintiff from undertaking any timely evaluation about whether a re-filing was warranted under the amended statute and/or whether the $2,000 fee should be paid.
For example, the numerous interim reports submitted by the defendant to the plaintiff evidence the defendant's responsibility and the plaintiff's expectation that the defendant would keep the plaintiff advised about developments and information concerning Anastasio's claim.
The plaintiff also contends that the defendant was required to pay the $2,000 fee himself and he breached a duty of care by not doing so. The plaintiff may be arguing that the defendant was required to advance the fee on the plaintiff's behalf and seek reimbursement, but the plaintiff's argument is unclear on this point. In any event, the court finds that in or about July 1995, the plaintiff would have paid or assumed the payment of the $2,000 filing fee if it had received the information about the defendant's conduct in order to allow a full consideration of this issue.
The defendant's contention that the plaintiff became aware of the problem in 1997 and failed to pay the fee at that time misses the point, because making the payment in 1997 would have been too late. As held by the Appellate Court, the fee needed to be paid at least within a reasonable time after the 1995 amendments. Anastasio v. Mail Contractors of America, Inc., supra, 69 Conn.App. 398-400. The Appellate Court found that allowing six years to pass without paying the fee was unreasonable. Id. Any payment of the fee two years after the amendments also would have been unreasonable.
B STATUTE OF LIMITATIONS SPECIAL DEFENSES 1 CT Page 13327
The defendant alleges that the plaintiff's contract claim is barred by the three-year statute of limitations under General Statutes § 52-581. This statute provides that an action founded on an agreement that is not reduced to writing shall be brought within three years after the right of action accrues.
General Statutes § 52-581(a) provides the following: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
The plaintiff first argues that § 52-581 is inapplicable because the parties' agreement was written, not oral. The plaintiff relies on various documents exchanged by the parties to support this contention. The court rejects this argument. None of the documents relied on by the plaintiff or any other documents of record delineate the terms of the parties' agreement with sufficient particularity to constitute a written contract.
However, the established law is that § 52-581 only applies to oral contracts that are executory in nature based on the status of the contract when suit is filed. This construction was made in order to reconcile General Statutes § 52-581 with § 52-576. The latter statute creates a six-year statute of limitations for actions alleging violation of simple or implied contracts. In Hitchcock v. Union New Haven Trust Co., 134 Conn. 246, 259, 56 A.2d 655 (1947), the Supreme Court explained this issue as follows: "If 6005 [now § 52-576] and 6010 [now § 52-581] are to be construed to make a harmonious body of law, it is necessary to restrict the latter, as was suggested in Baker v. Lee [ 52 Conn. 145 (1884)], to executory contracts. Section 6005 [§ 52-576] limits to six years actions on simple, that is parol contracts; 6010 [§ 52-581] limits to three years actions on contracts not reduced to or evidenced by a writing, that is, contracts resting in parol; and unless the latter is intended to apply only to executory contracts there would be different limitations established for actions of the same type, that is, those on parol contracts, a result which the legislature could not have intended."
General Statutes § 52-576(a) provides, in relevant part: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ."
The plaintiff contends that the parties' agreement is an executed contract governed by the six-year statute of limitations under § 52-576 because the plaintiff compensated the defendant throughout the course of his representation, the defendant accepted these payments, and the plaintiff, therefore, fully performed its obligations under the agreement.
The defendant, on the other hand, contends that the parties' agreement is an executory contract governed by the three-year statute of limitations under § 52-581. The defendant argues that at the time of the alleged breach in February 1994, the parties' contractual relationship was incomplete and continued though July 1998.
The court rejects the defendant's argument and finds that the six-year statute of limitations under § 52-576 controls the plaintiff's contract claim. This action is timely under this statute because suit was instituted within six years of February 1994, the earliest date on which the cause of action could have accrued.
Generally, an executory contract may be described as follows: "An executory contract is one in which a party binds him or herself to do or not to do a particular thing in the future. An executory contract is one which has not yet been fully completed or performed, or in which an obligation relates to some future event. A contract is executory when substantial performance remains due by both parties, such that failure of either to complete performance would constitute a material breach excusing performance of the other. However, a contract is not executory merely because it has not been fully performed by payment, if all the acts necessary to give rise to an obligation to pay have been performed." 17 C.J.S. 429, Contracts, § 8 (1999); see also, Hitchcock v. Union New Haven Trust Co., supra, 134 Conn. 258.
Consequently, whether an oral agreement is executed or executory is a fact specific determination governed by the nature of the parties' agreement and their performance under it. The parties did not present much evidence on this issue, but this much is clear: the defendant was retained to represent the plaintiff's interests in regard to Anastasio's claim and the defendant was to be compensated for those services. The arrangement was open-ended to the extent that either party could terminate the relationship at any time.
The defendant billed for his services regularly (on a quarterly basis), and once the bill was paid, the plaintiff had fully completed its obligation under the parties' agreement unless and until the defendant performed further work, and he was not legally required to perform any more work, as either party was free to terminate the relationship. There is no dispute that the defendant was fully and timely paid. The defendant specifically does not claim that the plaintiff failed to pay him for the services he rendered for filing the notice of transfer. In contrast, this is not a case where one party has not fully paid for the services contracted for and the other party has not completed the services. See, e.g. Hammie v. Russell, Superior Court, judicial district of New Haven, Docket No. CV 01 0449656 (February 4, 2004, DeMayo, J.T.R.) (the court finding the existence of an executory contract because neither party had fully performed). The plaintiff did all it was required to do under the parties' agreement, and therefore, for the purpose of the statute of limitations analysis, the contract was not executory.
Because the plaintiff fully performed under the contract, the case relied on by the defendant is distinguishable. See Gorlin v. Bond Richman Co., 706 F.Sup. 236 (S.D.N.Y. 1989). Additionally, although Gorlin states that an executory contract exists when "neither party, at the time of the breach, performed completely" ( id., 243); the timing of the full performance m this respect is a relevant, but not a conclusive factor. For example, a party may fully comply with its contractual obligations after the other party's breach because the breach was not discovered until some time after its commission.
The fact that the parties had a continuing and ongoing relationship is not dispositive. An analogous case is presented in Hitchcock v. Union New Haven Trust Co., supra, 134 Conn. 246. In that case, a plaintiff sued his employer for unpaid, overtime wages earned over a period of years. The Supreme Court held that despite the continuing employment relationship between the parties, the plaintiff had fully performed so that the six-year statute of limitations of § 52-576 applied: "The action before us is clearly one upon a simple contract where the plaintiff has fully performed, and it falls fully within [§ 52-576]. So far as appears in the complaint, the plaintiff was employed for an indefinite time at a weekly wage, and each week constituted a new employment." Id., 259. Similarly the parties' agreement here engaged the defendant for an indefinite period, either party having the right to terminate the relationship at any time, and the plaintiff only being obligated to pay the defendant for the services rendered. The plaintiff paid for these services on a timely basis, fully completing its obligation. Thus, the court rejects the defendant's argument that the contract is executory and is controlled by the three-year statute of limitations.
2
The defendant's next position is that the plaintiff's negligence claim is precluded by the three-year statute of limitations under General Statutes § 52-577. This statute provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The defendant's specific argument is that the act of negligence is the untimely filing of the February 1994 notice of transfer, and the statute of limitations bars this negligence claim because suit was instituted in April 1998, more than three years after the commission of this act. For the following reasons, the court finds in favor of the plaintiff on this issue.
As previously explained, the defendant had a duty that extended beyond the February 1994 filing because he was obligated to advise the plaintiff that he filed the notice of transfer late. Alternatively, based on his claim that he determined May 5, 1992 as being the initial date of disability (which claim the court has found incredible), the defendant had the duty to advise the plaintiff about his mistaken representations about this commencement date. The court disagrees with the plaintiff that this specific obligation continued until 1997 when the claim against the fund was referred to litigation by the plaintiff. However, the duty continued at least through July 1995 and for a reasonable time thereafter, representing the time period within which the $2,000 fee could have been paid under the amendments to General Statutes § 31-349. See Anastasio v. Mail Contractors of America, Inc., supra, 69 Conn.App. 397-400. As this case was filed in April 1998, within three years of July 1995, the statute of limitations has been met. Thus, to this extent the court agrees with the plaintiff that the defendant engaged in a continuing course of conduct that affected the running of the statute of limitations.
"To support a finding of a `continuing course of conduct' that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto." Fichera v. Mine Hill Corp., 207 Conn. 204, 209, 541 A.2d 472 (1988). "The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature, because specific tortious acts or omissions may be difficult to identify and may yet be remedied." Blanchette v. Barrett, 229 Conn. 256, 276, 640 A.2d 74 (1994).
Connecticut courts have recognized that a continuing duty exists where there is evidence of a special relationship between the parties. See Fichera v. Mine Hill Corp., supra, 207 Conn. 210. As a general rule; "[a]n agent is a fiduciary with respect to matters within the scope of his agency." Taylor v. Hamden Hall School, Inc., 149 Conn. 545, 552, 182 A.2d 615 (1962) (citing Restatement (Second), Agency § 13 [1958]). "The duty of an agent to make full disclosure to the principal of all material facts relevant to the agency is fundamental to the fiduciary relationship of principal and agent, and an agent must give the principal any information that the latter would desire to have and which can be communicated to him or her without violating a superior duty to a third person." 3 Am.Jur.2d § 206 (2003).
As previously found by the court, the principal-agency relationship that existed between the plaintiff and the defendant created a responsibility for him to disclose material information related to the scope of his representation and relevant to the protection of the plaintiff's interests. His failure to inform the plaintiff about the untimely filing or his mistaken representations regarding Anastasio's initial date of disability represented a continuing breach of this responsibility at least through July 1995 for statute of limitations purposes.
The defendant's arguments to the contrary are rejected. The defendant emphasizes, for example, that in February 1994, a law firm was retained to represent the plaintiff regarding Anastasio's claim. The defendant claims that thereafter his role in the case essentially involved "clerical" functions. This claim is belied by the evidence.
When the defendant provided the law firm with a copy of his file, he indicated that he represented the plaintiff and asked the attorney to keep him advised about all developments. (Exhibit 27.) He subsequently had numerous, substantive communications with these attorneys, as well as with Anastasio's attorney, doctors, the commission, and the fund. He also retained the services of an investigator to conduct surveillance of Anastasio. The plaintiff sought the defendant's input and advice about the case and he agreed to provide it. (See, e.g., exhibits 37, 43, 44, 45, 46, 48, 50.) As a further example, in an April 25, 1996 letter to the plaintiff's claims examiner, the defendant provided an interim report on the claim stating the following: "I shall follow up with our attorneys and continue to keep you advised of all developments. In the interim, I would request that you continue paying the claimant this temporary total disability." This evidence does not indicate the defendant's activities were clerical in nature. The evidence clearly establishes that after February 1994, the defendant continued his role representing the plaintiff as an adjuster in the case.
The defendant further opines that the law firm representing the plaintiff was responsible for failing to have the $2,000 notification fee paid. The law firm is not a party to this action. Therefore, this law firm has not had the opportunity to be heard on any claim of negligence against it, and the court is not inclined to make any findings about its negligence. In any event, any negligence on the part of the plaintiff's attorneys would not exonerate the defendant of his own wrongdoing. See generally Bradford v. Herzig, 33 Conn.App. 714, 724, 638 A.2d 608, appeal denied, 229 Conn. 920, 642 A.2d 1212 (1994) ("It is axiomatic that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both . . . If the defendant believed that a nonparty was responsible for some of all of the plaintiff's injuries, it was his responsibility to implead that nonparty" (citations omitted; internal quotation marks omitted)) Moreover, the defendant has not alleged contributory negligence. (See footnote 1.)
The defendant also attempts to couch the law firm's involvement in the payment of the $2,000 notification fee as an issue of causation, rather than one of negligence. Without addressing the substantive merit of this claim for the reasons discussed above, it is sufficient to note the following. The court has found that the defendant's conduct was a proximate cause of the plaintiff's injury. The law is well established that such a finding of causation against a defendant is not precluded merely because more than one factor may have proximately caused the injury. See Sulliven v. Krivitsky, 100 Conn. 508, 511, 123 A. 847 (1924) ("Negligence, in order to render one liable, need not be the sole cause of an injury. When two causes combine to produce injuries, one is not relieved from liability because he is responsible for only one of them). See also, Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003) (discussing the future inapplicability of superceding cause under Connecticut law).
IV CONCLUSION
Therefore, for the foregoing reasons, the court finds that the plaintiff has met its burden of proof by a preponderance of the evidence against the defendant on the issues of liability and causation under the first and second counts of the complaint alleging breach of contract and negligence.
On or before October 1, 2004, the plaintiff shall file a memorandum, not exceeding twelve pages, supporting its claim for damages, which shall include a specific itemization of the damages claimed, the basis in the record for each item, and any legal argument regarding same. On or before October 22, 2004, the defendant shall file a memorandum in response, not exceeding twenty pages, which shall include any arguments based on the defendant's failure to mitigate defense. On or before November 5, 2004, the plaintiff may file a reply memorandum not exceeding eight pages.
Stevens, J.