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DOCKET NO.: NNH-CV23-6129795-S SUPERIOR COURT
SKYLINE SOLAR, LLC J.D. OF NEW HAVEN
VS. AT NEW HAVEN
KETTIA SAINT-SURIN and
MARIE K. ARIS JANUARY 22, 2024
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S CLAIM
Pursuant to The Honorable Robin Wilson’s Order dated December 29, 2023, the undersigned
Plaintiff hereby submits the following Memorandum of Law.
In Connecticut, the Superior Court is the sole court of original jurisdiction for all causes of
action except those in which the Probate Courts have original jurisdiction. Under Conn. Gen. Stat.
Section 31-293(a), an employer who has paid or become obligated to pay worker’s compensation
benefits to an injured employee as a result of a third-party tortfeasor’s negligence has standing to
bring an action against the third-party tortfeasor. Additionally, the common law doctrine of
equitable subrogation provides that a workers’ compensation insurer has standing to bring an action
against third-party tortfeasors to recover benefits paid to an injured employee. Per at least one ruling
at the Superior Court level, the Court held that subject matter jurisdiction is unaffected by a lack of
notice to the employee/employer by the party bringing suit. See Hall v. O’Connor, Superior Court,
Judicial District of Fairfield, Docket No. CV-10-6011894-S, 59 Conn. L. Rptr. 155, 2014 WL
6476606 (Oct. 21, 2014, Sommer, J.) attached as Exhibit A.
In the instant case, the undersigned spoke directly with the injured employee’s attorney at
the time that this lawsuit was commenced. As the injured employee through counsel was
simultaneously filing her own lawsuit, no written notification of the instant suit was served. In fact 2
no written notification has ever been provided by the injured employee’s legal counsel to the
Plaintiff in the instant matter that they actually filed suit. Thus, the time-period in which the
Plaintiff in this case may intervene in the injured’ employee’s lawsuit has yet to commence.
Logically, the two pending matters should simply be consolidated.
I LAW
“Subject matter jurisdiction is the power of the court to hear and determine cases of the
general class to which the proceedings in question belong.” Shea v. First Federal Sav. and Loan
Ass’n of New Haven, 184 Conn. 285, 288 (1981). The legislature, through statute, defines the
jurisdiction of the Superior Court. Conn. Const., art. V, § 1. Pursuant to Connecticut statute, the
Superior Court is the sole court of original jurisdiction in Connecticut for all causes of action,
except those which the Probate Courts have original jurisdiction as provided by statute. Conn. Gen.
Stat. § 51-164s. “It is well established that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction should be indulged.” Massey v. Branford, 119
Conn. App. 453, 458 (2010). “[T]he general rule of jurisdiction . . . is that nothing shall be intended
to be out of the jurisdiction of [the] Superior Court but that which specially appears to be so.” Keller
y. Beckenstein, 305 Conn. 523, 538 (2012) (quoting Raftopol v. Ramey, 299 Conn, 681, 695
(2011).
“Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and
the political question doctrine, that implicate a court’s subject matter jurisdiction and its
competency to adjudicate a particular matter.” Keller, 305 Conn. at 536 (quoting Office of the
Governor v. Select Committee of Inquiry, 271 Conn. 540, 569 (2004)). “[A] party must have
standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.”
Equity One, Inc. v. Shivers, 125 Conn. App. 201, 205 (2010). “Standing is the legal right to set
judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he
has, in an individual or representative capacity, some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of the controversy.” Id. at 205. “Standing is. . .
a practical concept designed to ensure that courts and parties are not vexed by suits brought to
vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are
forged in hot controversy, which each view fairly and vigorously represented.” Missionary Society
of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201-202 (2006). “These two
objectives are ordinarily held to have been met when a complainant makes a colorable claim of
direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a
personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete
adverseness and diligent advocacy.” Burton v. Commissioner of Environmental Protection, 291
Conn. 789, 802-803 (2009).
A. STANDING FOR EMPLOYER
Connecticut statute creates a right for employers to intervene in or bring an action against a
third-party tortfeasor on behalf of an injured employee. Conn. Gen. Stat. § 31-293(a). As this right
did not exist at common law, the scope of the employer’s right consists only of those privileges
provided by 31-293(a). Pacific Insurance Company. Limited v. Champion Steel. LLC, 323 Conn.
254, 270 (2016). The statute establishes that,
[A]ny employer . . . having paid, or having become obligated to pay, compensation
under the provisions of [Chapter 568] may bring an action against such person to
recover any amount that he has paid or has become obligated to pay as compensation
to the injured employee.
Conn. Gen. Stat. § 31-293(a). Skyline has statutory standing to bring this action against its
employee’s third-party tortfeasor because it has become obligated to pay worker’s compensation
benefits to the injured employee due to the Defendants’ negligence.
In Hall v. O’Connor, the Judicial District of Fairfield held that an employee’s failure to
provide notice to his employer under Section 31-293 did not affect the Court’s subject matter
jurisdiction over the employee’s claims. Hall v. O’Connor, Superior Court, judicial district of
Fairfield, Docket No. CV-10-6011894-S, 59 Conn. L. Rptr. 155, 2014 WL 6476606, at *4 (Oct. 21,
2014, Sommer, J.). “Failure to notify an employer of pending litigation pursuant to General Statutes
[Section] 31-293 allows an employer to enter the action at any point in the proceedings.” Misiurka
v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385 (1988). Since the employee never notified the
employer in Hall, the court held that the thirty-day limitation period never began to run and thus
never ran out, so the court never lost subject matter jurisdiction over the employer’s claims. Hall,
2014 WL 6476606 at *4. The same rationale would seem to apply in this instant matter.
I ARGUMENT
The Plaintiff brings this action on behalf of the worker’s compensation insurer by and
through the employer, Skyline Solar, LLC. The subrogation claim, ultimately, will reimburse the
insurer for amounts it is obligated to pay as compensation to the injured employee asa result of the
third-party tortfeasor. Pursuant to Connecticut statute, the Plaintiff employer has standing to bring
this subrogation action. Under the common law doctrine of equitable subrogation, the Plaintiff’s
worker’s compensation insurance carrier also has standing to bring this subrogation claim to the
extent that it does not assert any greater rights than could the Plaintiff employer. Therefore, this
Court, respectfully, has subject matter jurisdiction over the present action.
THE PLAINTIFF,
BY: 413126
Clayton J. Quinn, Esq.
THE QUINN LAW FIRM, LLC
204 S. Broad Street
Milford, CT 06460
.203.877.5400
£.203.877.5416
Juris No. 424062
CERTIFICATION
This is to certify that the foregoing has been mail or delivered electronically or non-
electronically, on this 23° day of January 2024 to all counsel and pro se parties of record as
follows:
Ms. Kattia Saint-Surin
253 Wurz Street
Brentwood, NY 11717
Ms. Marie K. Aris
253 Wurz Street
Brentwood, NY 11717
BY: 413126
CLAYTON J. QUINN, ESQ.
Hall v. O'Connor, Not Reported in A.3d (2014)
———-EXHIBITA a
59 Conn. L. Rptr. 155
2014 WL 6476606
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Connecticut,
Judicial District of Fairfield.
Garland HALL
v.
Joseph O'CONNOR et al.
No. CV106011894S.
|
Oct. 21, 2014.
Synopsis
Background: Worker at scrap metal yard brought action against truck driver and trucking company, alleging one count of
negligence and one count of recklessness, and seeking damages for injuries that worker suffered after being hit by truck.
Defendants filed apportionment complaint against operator of scrap metal yard. Operator did not respond to apportionment
complaint but filed intervening complaint. After a bench trial, the Superior Court, Judicial District of Fairfield, apportioned
liability between parties due to comparative negligence, attributing 55% liability to defendants and 45% to worker. Worker filed
motion for reconsideration and articulation.
Holdings: The Superior Court, Sommer, J., held that:
30-day period for operator to intervene to recover amounts paid in workers' compensation was not commenced when defendants
filed apportionment complaint, and
operator was entitled to recover 100% of its workers' compensation lien from the proceeds of worker's recovery.
Motion denied.
Attorneys and Law Firms
Daly Weihing & Bodell, Bridgeport, for Garland Hall.
Silvester & Kappes, New London, for Joseph O'Connor et al.
SOMMER, J.
I INTRODUCTION
*1 Before the court is the plaintiff's post-trial motion for reconsideration and articulation of the court's October 11, 2013
memorandum of decision following a bench trial. For reasons explained herein, the decision of the court remains unchanged,
and the request for further reconsideration and/or articulation is hereby denied.
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Hall v. O'Connor, Not Reported in A.3d (2014)
59 Conn. L. Rptr. 155
This case arises out of a workplace accident involving two employees who worked for different employers. As described in
detail in the court's October 11, 2013 memorandum of decision (decision), the plaintiff, Garland Hall, sued the defendants,
Joseph O'Connor and his employer, All-Ways Dumpsters, Inc, (All-Ways), ! after he was hit by an All-Ways truck that was
operated by O'Connor. More particularly, while the plaintiff was working at a scrap metal yard operated by his employer, Surf
Metal (Surf), O'Connor backed up his dumpster truck and hit the plaintiff. This case followed.
1 The court will refer to O'Connor and All—Ways collectively as “the defendants” where appropriate.
Hall's operative complaint, filed on November 8, 2010, alleges one count of negligence and one count of recklessness (# 106).
The defendants filed an answer and two special defenses on July 23, 2012 (# 120). Their first special defense alleges that Hall's
own negligence caused the accident; their second special defense alleges that Surf's negligence caused the accident.
On December 13, 2010, the defendants filed an apportionment complaint against the apportionment defendant, Surf (# 107).
They allege that, as Hall's employer, Surf had a number of safety-related obligations including, inter alia, the duty to ensure a safe
workplace for its employees. The defendants claim that the accident was caused by Surf's negligence. Surf has not appeared in its
capacity as an apportionment defendant, nor has it filed any responsive pleading with respect to the apportionment complaint, °
2
As explained in the decision, Hall filed a motion to strike the apportionment complaint two and a half years later, but
this motion was denied based on untimeliness and lack of standing.
Nevertheless, Surf intervened pursuant to General Statutes §31-293(a),? thus becoming an intervening plaintiff. + 5 Its
operative two-count intervening complaint was filed on October 18, 2011 (# 114). In count one, Surf alleges that the accident
was caused by O'Connor's negligence, that O'Connor was acting as the agent of All-Ways, that Surf paid indemnity benefits—
including workers' compensation benefits—to Hall, and that it seeks to recover all such outlays. Count two mirrors count one,
except that it characterizes O'Connor's actions as reckless.
3
3
Section 31~293(a) provides, in relevant part, that an employee who suffers an injury that “has been sustained under
circumstances creating in a person other than an employer ... a legal liability to pay damages for the injury” may “proceed
at law against such person to recover damages for the injury ...” The statute further provides that “any employer ...
having paid, or having become obligated to pay, compensation under the provisions of [the Workers' Compensation Act
(act) ] may bring an action against such person to recover any amount that he has paid or has become obligated to pay
as compensation to the injured employee ... If the employer and the employee join as parties plaintiff in the action and
any damages are recovered, the damages shall be so apportioned that the claim of the employer ... shall take precedence
over that of the injured employee in the proceeds of the recovery ...”
The court, Stodolink, J., granted Surf's motion to intervene (# 113) on August 7, 2012.
The appointment complaint lists New Hampshire Insurance Company, and Chartis Claims, Inc., as additional intervening
plaintiffs. Nevertheless, neither of these entities has appeared in this case.
With respect to liability, the decision reads: “[T]he actions of the defendant All-Ways and its employee, O'Connor, were the
proximate cause of the accident which injured ... Hall ... [Nevertheless] Hall's own negligence contributed to the accident and
the injuries he claims to have sustained ... The court attributes 55 percent liability to the defendants and 45 percent liability to
[Hall]. Judgment shall enter for [Hall] on the first count [for negligence] ... [Hall] did not present any facts from which the court
could find that the actions of the defendants were reckless or wanton. Judgment shall enter for the defendants on the second
count [for recklessness] ... [T]he apportionment plaintiff [Surf] has not met its burden of proof.” With respect to damages, Hall
“proved that he sustained injuries to his lumbar area ... for which he is entitled to recover damages for medical care and lost
wages.” Accordingly, this court awarded Hall $3 | ,402, reflecting the total amount of proven economic damage that he suffered,
adjusted downward to account for his 45% apportioned liability. In turn, Surf was “entitled to recover the amount of its lien
under the statute.”
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*2 On October 31, 2013, Hall filed a motion for reconsideration and articulation. Hall asks the court to reconsider the following:
(1) its award of 100% of Surf's workers’ compensation lien without reductions for apportioned liability or Hall's failure to
recover for his cervical spine injuries; (2) its finding that Hall was 45% at fault for the accident; (3) all of the evidence regarding
the proximate cause(s) of Hall's injuries in light of a fair preponderance standard of proof or, alternatively, to articulate the
evidentiary standard that the court applied in its determination regarding causation; (4) its requirement that a medical doctor
specializing in orthopedic medicine provide expert testimony to supplement that of Robert Pesale, a chiropractic practitioner,
regarding the causal connection between the accident and Hall's injuries and its decision, therefore, to deny recovery for some
of Hall's medical bills or, alternatively, to articulate the basis for its disregard of Pesale's expert testimony regarding the causal
connection between the accident and some of Hall's alleged injuries and the basis for denying damages for Hall's cervical spine
injuries; and (5) its decision to not award overtime pay or, alternatively, to articulate the basis for denying damages therefor.
All of the other appearing parties objected to Hall's motion to reconsider. Surf objected on the basis that reimbursement is
governed by General Statutes § 31-293 and Hall's contrary position regarding this issue is unsupported by statute or case law
(# 143). O'Connor and All-Ways simply objected (# 144). Hall's motion for reconsideration was granted and the appearing
parties were present at a hearing on June 10, 2014. Based on arguments raised and presented at the hearing, the parties were
ordered to further brief two issues of law. Surf filed its memorandum on June 23, 2014 (# 149), and Hall filed his memorandum
on June 24 (# 150).
II. Whether the Court Lacks Subject Matter Jurisdiction Pursuant to C.G.S. § 31--293(a)
The first additional issue of law that the parties were ordered to brief is whether, pursuant to General Statutes § 31-293(a), © this
court lacks subject matter jurisdiction over Surf's claims, based on the fact that it was served with process as an apportionment
defendant in December of 2010, but failed to file an appearance or intervening complaint until October of 2011.
6
Section 31~293(a) provides: “When any injury for which compensation is payable under the provisions of this chapter
has been sustained under circumstances creating in a person other than an employer who has complied with the
requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee
may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect
the claim or right of action of the injured employee against such person, but the injured employee may proceed at law
against such person to recover damages for the injury; and any employer ... having paid, or having become obligated
to pay, compensation under the provisions of this chapter may bring an action against such person to recover any
amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the
employer or the custodian of the Second Injury Fund brings an action against such person, he shail immediately notify
the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the
court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after
such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate
unless the employer ... gives written notice of a lien in accordance with this subsection. In any case in which an employee
brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of
section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the
employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute
notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the
action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in
this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction
of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery.
If the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of
the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure
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Hall v. O'Connor, Not Reported in A.3d (2014)
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59 Conn. L. Rptr. 155
solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of
Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of
the Second Injury Fund. The rendition of a judgment in favor of the employee or the employer against the party shall not
terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable
to the injured employee. If the damages, after deducting the employee's expenses as provided in this subsection, are
more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse
him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person
by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by
him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation
which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present
worth of any probable future payments which he has by award become obligated to pay on account of the injury. The
word ‘compensation,’ as used in this section, shall be construed to include incapacity payments to an injured employee,
payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an
injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under
the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31—284b in the case
of an action brought under this section by the employer or an action brought under this section by the employee in
which the employee has alleged and been awarded such payments as damages. Each employee who brings an action
against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of
any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of
the suit, and (B) the amount equal to the present worth of any probable future payments which the employer or the
Second Injury Fund has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions
of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been
sustained under circumstances creating in a person other than an employer who has complied with the requirements of
subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received
compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund
pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon
any judgment received by the employee against the party or any settlement received by the employee from the party,
provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior
to such judgment or settlement.” (Emphasis added.)
Surf argues that, pursuant to § 31-293(a), its intervening complaint was timely and proper. That section provides, in relevant
part: “If the employee, the employer or the custodian of the Second Injury Fund brings an action against such [third] person,
he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action
and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within
thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person
shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this
subsection ... The bringing of any action against an employer shall not constitute notice to the employer within the meaning of
this section.” (Emphasis added.) It is Surf's contention that because its employee Hall never provided Surf with proper notice
of this action, the limitations period for Surf's right to intervene never began to run and, thus, never expired.
*3 Inresponse, Hall argues that Surf received notice when O'Connor, and All-Ways served process on Surfas an apportionment
defendant to this action. Therefore, in Hall's words, the “spirit and intent” of Chapter 568 of the General Statutes was safeguarded
and, accordingly, the court lacks subject matter jurisdiction over Surf's untimely claims. Hall fails to cite any legal authority
in support of this argument.
In this case, the court has followed the rule first enunciated in Lakewood Metal Products, Ine. v. Capital Machine & Switch Co.,
154 Conn. 708, 710, 226 A.2d 392 (1967) that “[a]n employer who does not receive notice from an employee concerning the
institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time ...
because, until notice is given, the time does not begin to run.”
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Hall v. O'Connor, Not Reported in A.3d (2014)
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59 Conn. L. Rptr. 155
“Where a cause of action has been created by statute, strict compliance with the prescribed procedure is essential ... The general
rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right
must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as
created, and not of the remedy alone.” (Citation omitted; internal quotation marks omitted.) Rana v. Ritacco, 236 Conn, 330,
336 n. 4, 672 A.2d 946 (1996).
“General Statutes § 31-293 grants to an employer who has paid workers’ compensation a right to join as a party plaintiff in
actions by employees against third party tortfeasors ... provided that the right is exercised in a timely fashion ... By authorizing
an employer to obtain reimbursement for workers' compensation benefits from a third party tortfeasor [§ 31-293] implements
the public policies of preventing double recovery by an injured employee ... and thereby containing the cost of workers’
compensation insurance ...
“Under § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the
fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms
of the statute require no more ... Once a potential intervenor has been properly notified, he has thirty days within which to
intervene. If an employer or employee who is properly notified of a third party action fails to intervene in the action as a party
plaintiff within thirty days from notification, his right of action against such third person shall abate ... On the other hand, [a]n
employer who does not receive notice from an employee concerning the institution of a third party action in accordance with §
31-293 [cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given,
the time does not begin to run.” (Citations omitted; internal quotation marks omitted.) Id., at 335-36, 672 A.2d 946.
*4 “Failure to notify an employer of pending litigation pursuant to General Statutes § 31-293 allows an employer to enter
the action at any point in the proceedings.” (Emphasis added.) Misiurka v, Maple Hill Farms, Inc., 15 Conn.App. 381, 385, 544
A.2d 673, cert. denied, 209 Com, 813, 550 A.2d 1083 (1988). “See [also] Gurliacci v. Mayer, 218 Conn. 531, 578-79, 590 A.2d
914 (1991) (ruling that city was not barred by 30-day period under § 3 1-293(a) where it never received proper statutory notice
of commencement of action, even if it was actually aware of action, when it moved to intervene over four years past expiration
of two-year statute); Light Sources, Inc. v. Global Equipment Corp., Superior Court, judicial district of Ansonia—Milford at
Derby, Docket No. CV-01--0076465-S [2003 WL 231651] (January 10, 2003, Nadeau, J.) [ (33 Conn. L. Rptr. 633) ] (granting
employee's motion to intervene by holding that intervening plaintiff was not properly given notice, and that defendant was not
prejudiced under Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 716 A.2d 71 (1998) when motion to intervene filed
almost four years after employee's injury); Fire Systems, Inc. v. Semac Electrical Contractors, Superior Court, judicial district
of New Haven at New Haven, Docket No. CV-96-0382930-S [1999 WL 558104] (June 22, 1999, Devlin, J.) (24 Conn. L.
Rptr. 684) (concluding that employee could intervene in employer's suit where employer never provided employee with notice
under § 31~293(a), where employee moved to intervene almost three years after the expiration of the two-year statute).” TRC
Companies, Inc. v. ABM Janitorial Services Northeast, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09—
5032748-S, 2011 WL 5531318 (October 25, 2011, Peck, J.) (52 Conn. L. Rptr. 808, 810-11).
Here, Hall does not dispute that he failed to provide proper notice—or any notice—of this action to Surf. He also does not
dispute that any notice Surf did receive was delivered via O'Connor and All—Ways. In contending, nevertheless, that this court
lacks subject matter jurisdiction over Surf's claims, Hall not only ignores contrary yet binding appellate authority, but also
the requirement specifically set forth in § 31~293(a) that he himself provide notice to Surf, and that portion of § 31-293(a)
providing: “the bringing of any action against an employer shall not constitute notice to the employer within the meaning of this
section.” (Emphasis added.) Hall's attempt to obtain the benefit of § 31~-293(a) without having complied with the clear statutory
mandate is unavailing. Because he failed to notify Surf of this action in accordance with the requirements incumbent upon him
pursuant to § 31-293(a), the thirty-day limitation period never began to run against Surf and, thus, never ran out. Accordingly,
this court never lost subject matter jurisdiction over Surf's claims.
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Hall v. O'Connor, Not Reported in A.3d (2014)
59 Conn. LRpir. 155
III. Whether Surf's Recovery Must Be Reduced Proportionately to Hall's
Comparative Negligence Or Whether It is Entitled to Recover Its Entire Lien
*5 This second issue of law that the parties were ordered to brief, and the first issue raised by Hall in his motion, is whether,
pursuant to § 31-293(a), Surfis entitled to recover 100% of its workers' compensation lien from the proceeds of Hall's recovery
or if, alternatively, Surf's recovery should be proportionally reduced relative to that of Hall's, which was reduced due to his
comparative negligence.
Surf argues that § 31-293(a) does not authorize such a reduction and, thus, any diminishment of its return based on Hall's
diminishment would be contrary to the intent of the legislature. Surf argues further that any such reduction would be contrary
to public policy. It emphasizes that its right to full recovery is fair under our no-fault workers' compensation scheme, whereby
it must pay out benefits in full without regard for an employee's contributory negligence. Thus, while Hall's contributory
negligence may have proportionally diminished his own recovery for the accident, it has no bearing on Surf's right to recover
the full amount of its workers' compensation payouts. Finally, Surf argues that any reduction would run contrary to Supreme
Court authority.
In response, Hall concedes that, under § 31-293, employers are entitled to reimbursement for their workers’ compensation
outlays, and that this right prevents employees from unfairly recovering twice for the same injury. Nevertheless, Hall argues
that if Surf is permitted to collect the full amount of its lien, then Hall will be “double punished,” and possibly recover nothing
at all, Hall also contends that because Surf's right to intervene is a derivative action that arises from Hall's underlying claims,
neither Surf's rights nor its recovery may exceed those of Hall.
“When an employee suffers a work-related injury, workers' compensation benefits are the exclusive remedy as between the
employee and the employer ... The employee, however, may bring a civil action against parties other than the employer who are
responsible for the employee’ injuries ... When an employee brings such an action, [§] 31-293 ... provide[s] that ... the plaintiff's
employer ... may join the proceedings as a plaintiff and recover from the judgment against the third party any compensation
benefits paid. Specifically, the [statute] provide[s] the [employer] with a right of reimbursement from the judgment against the
third party for (1) the amount of any compensation which [it] has paid on account of the injury which is the subject of the suit
and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay
on account of the injury.” (Citations omitted; internal quotation marks omitted.) Cruz v, Montanez, 294 Conn. 357, 366-67, 984
A.2d 705 (2009). “By authorizing an employer to obtain reimbursement for workers’ compensation benefits from a third party
tortfeasor ... [§ 31-293] implements the public policies of preventing double recovery by an injured employee ... and thereby
containing the cost of workers' compensation insurance.” (Citation omitted; internal quotation marks omitted.) Rana v. Ritacco,
supra, 236 Comn. at 335, 672 A.2d 946.
*6 Despite Hall's argument, the statute in question directly addresses this issue. With respect to priority in interest, § 31—
293(a) provides, in relevant part: “[I]f the employer and the employee join as party plaintiffs in the action and any damages are
recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence
over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures,
including attorneys fees, incurred by the employee and affecting the recovery period.” (Emphasis added.) “[T]he language of §
31-293(a) is clear. An employer that pays workers’ compensation benefits to an injured employee is entitled to reimbursement
for those payments from ‘any damages’ that the employee may recover from the third party tortfeasor. General Statutes § 31—
293(a) ... [Flor purposes of § 31-293(a), the term ‘any damages’ means damages of whatever kind or sort, without limitation ...
[Thus] the unambiguous directive of § 31-293(a) [is] that the employer shall be reimbursed from ‘any damages' obtained by the
employee against the third party tortfeasor ... [This] conclusion is buttressed by the fact that the legislature has limited deductions
against a plaintiff's recovery to economic damages in other statutes but has not done so in § 31-293(a) ... Accordingly, we may
presume that, if the legislature had intended to limit the apportionment of damages under § 31-293(a) ... it would have done so
explicitly.” (Citations omitted.) Cruz v. Montanez, supra, 294 Conn. at 369-70, 984 A.2d 705.
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In Cruz, the court held that an employer's right to recover its workers' compensation payments extended to non-economic
damages recovered in an action by an employee, even though the workers' compensation payments were for economic damages.
Cruz v. Montanez, supra, 294 Conn. at 371, 984 A.2d 705. Our Supreme Court has further held that this right of recovery is
unconditional. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 780, 610 A.2d 1277 (1992) (thus, comparative negligence
not valid special defense to employer's intervening claim for reimbursement). The right of priority that is vested in employers is
unqualified because “one of the primary goals of § 31—293(a) ... [is] to ensure that ... the ultimate loss [falls on] she wrongdoer...
by allowing the employer to take action in order to recover the workers' compensation benefits [that] it was legally obligated
to pay to its injured employee .., The concept underlying third party actions is the moral idea that the ultimate loss should
fall upon the wrongdoer ... It is equally elementary that the claimant should not be allowed to keep the entire amount both
of his or her compensation award and of the common-law damage recovery. The obvious disposition of the matter is to give
the employer so much of the negligence recovery as is necessary to reimburse it for its compensation outlay, and to give the
employee the [remaining amount].” (Citations omitted, emphasis added; internal quotation marks omitted.) Cruz v. Montanez,
supra, 294 Conn. at 371, 984 A.2d 705.
*7 In the present case, three “wrongdoers” share fault for the accident: O'Connor, All—-Ways, and Hall himself, who was 45%
responsible. Thus, the moral idea that the weight of the loss be borne by the wrongdoer applies not only to O'Connor and All~
Ways, but also to Hail himself, Most importantly, though, it is the duty of this court to adhere to the plain meaning of § 31—
293(a), as adduced by our Supreme Court. Because, under § 3 |-293(a), the employer's right of priority is unconditional, Hall's
arguments to the contrary are unavailing.
IV. Standard of Proof and Related Evidentiary Issues
All of the remaining issues raised by Hall in his motion for articulation and reconsideration address the standard of proof: applied
by the court and the reasonability of the facts determined and damages awarded based on the evidence presented.
First, Hall requests articulation of the evidentiary standard applied in the decision, Ina civil action, the burden of proof is on the
plaintiff to prove all of the essential allegations of its complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221
‘onn, 674, 678, 607 A.2d 370 (1992). “The burden of persuasion in an ordinary civil action is sustained if evidence induces in
the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.” (Internal quotation
marks omitted.) Lopinto v. Haines, 185 Conn, 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of
the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in
your mind.” Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Here, the court's colloquial description of the evidence at issue is not to be confused with the standard of proof applied to the
evidence presented. The standard applied was the fair preponderance standard as required in civil actions of this nature. That is,
the court rendered its decision in this case based on the better, or weightier evidence, as found by the court having weighed all
of the facts presented. Accordingly, there is no need for the court to reconsider the evidence, having already done so according
to the proper standard.
Next, the court will address the reasonability of its factual findings and award of damages based on the evidence presented.
‘The plaintiff is under the misimpression that the court found that the plaintiff failed to prove that he had suffered injury to his
cervical spine because he did not call an orthopedic doctor to testify. This is incorrect. The court considered the testimony of
the plaintiff's treating chiropractor with respect to his alleged injuries. The court considered and weighed the testimony of the
chiropractor as to both the claims of injury to the lumbar spine and the cervical spine. The court in fact found that the plaintiff
suffered injury to his lumbar spine as a result of the incident. However, based on the evidence presented, the court concluded
that the plaintiff failed to establish that he suffered injury to his cervical spine in the same incident.
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*8 The court considered the testimony of the plaintiff's expert as instructed by the Supreme Court. With respect to the testimony
of experts, our Supreme Court has explained: “Expert testimony should be admitted when: (1) the expert has a special skill or
knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the
testimony would be helpful to the court or jury in considering the issues.” Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228
(2003). Once an expert is qualified, his or her testimony will “assist the jury in understanding the evidence or in determining
a fact in issue.” Id., at 686, 822 A.2d 228, citing Conn.Code Evid. § 7-2. Nevertheless, “[t]he [fact finder] is in a position to
weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the
expert's assertions based on his special skill or knowledge ... Furthermore, where understanding of the method is accessible to
the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert's qualifications and the
logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence.” Id., at
688, 822 A.2d 228. Thus, the purpose of expert testimony is not to inject the fact finder with an opinion. Rather, the purpose
thereof is to assist the fact finder in understanding the evidence presented so that the fact finder may determine facts in issue.
The neutral fact finder is under no obligation to adopt the conclusions of experts proffered by the parties. To the contrary, he
or she must determine facts in light of al/ of the evidence presented, without abandonment of common sense or independent
judgment. Accordingly, Hall's contention that the court wrongfully disregarded an expert opinion simply because it did not
adopt that opinion is unavailing.
With respect to the merits of the court's conclusions, “[i]t is axiomatic that the credibility of witnesses, the weight to be given
to evidence and the inferences to be drawn from the evidence are all matters for the trier of fact.” Hutchinson v. Andover, 49
Conn. App. 781, 787, 715 A.2d 831 (1998). “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of
the witnesses and the weight to be given specific testimony ... The credibility and the weight of expert testimony is judged by the
same standard, and the trial court is privileged to adopt whatever testimony [s]he reasonably believes to be credible ... It is the
quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony ...
The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other.” (Citations
omitted; internal quotation marks omitted.) Jn re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also Jn re
Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011) (same). “Tt is an abiding principle of our jurisprudence that [t]he
sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [NJothing in our law is more elementary than
that the trier [of fact] is the final judge of the credibil ity of witnesses and of the weight to be accorded to their testimony ...
The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in
whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658,
664, 897 A.2d 710 (2006). Finally “[t]he trial court has broad discretion in determining damages ... [which] must be proved
with reasonable certainty.” (Citations omitted; internal quotation marks omitted.) Beverley Hills Concepts v. Schatz, 247 Conn.
48, 68-69, 717 A.2d 724 (1998).
*9 In the present case, the determinations of the court as expressed in the decision are the result of careful and thorough
consideration of all of the evidence that was presented. It is unnecessary for the court to reconsider or to further articulate those
determinations, and the court declines to do so. Accordingly, the decision of the court remains unchanged, and the request for
further reconsideration and/or articulation is hereby denied.
All Citations
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DOCKET NO.: NNH-CV23-6129795-S SUPERIOR COURT SKYLINE SOLAR, LLC J.D. OF NEW HAVEN VS. AT NEW HAVEN KETTIA SAINT-SURIN and MARIE K. ARIS JANUARY 22, 2024 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S CLAIM Pursuant to The Honorable Robin Wilson’s Order dated December 29, 2023, the undersigned Plaintiff hereby submits the following Memorandum of Law. In Connecticut, the Superior Court is the sole court of original jurisdiction for all causes of action except those in which the Probate Courts have original jurisdiction. Under Conn. Gen. Stat. Section 31-293(a), an employer who has paid or become obligated to pay worker’s compensation benefits to an injured employee as a result of a third-party tortfeasor’s negligence has standing to bring an action against the third-party tortfeasor. Additionally, the common law doctrine of equitable subrogation provides that a workers’ compensation insurer has standing to bring an action against third-party tortfeasors to recover benefits paid to an injured employee. Per at least one ruling at the Superior Court level, the Court held that subject matter jurisdiction is unaffected by a lack of notice to the employee/employer by the party bringing suit. See Hall v. O’Connor, Superior Court, Judicial District of Fairfield, Docket No. CV-10-6011894-S, 59 Conn. L. Rptr. 155, 2014 WL 6476606 (Oct. 21, 2014, Sommer, J.) attached as Exhibit A. In the instant case, the undersigned spoke directly with the injured employee’s attorney at the time that this lawsuit was commenced. As the injured employee through counsel was simultaneously filing her own lawsuit, no written notification of the instant suit was served. In fact 2 no written notification has ever been provided by the injured employee’s legal counsel to the Plaintiff in the instant matter that they actually filed suit. Thus, the time-period in which the Plaintiff in this case may intervene in the injured’ employee’s lawsuit has yet to commence. Logically, the two pending matters should simply be consolidated. I LAW “Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong.” Shea v. First Federal Sav. and Loan Ass’n of New Haven, 184 Conn. 285, 288 (1981). The legislature, through statute, defines the jurisdiction of the Superior Court. Conn. Const., art. V, § 1. Pursuant to Connecticut statute, the Superior Court is the sole court of original jurisdiction in Connecticut for all causes of action, except those which the Probate Courts have original jurisdiction as provided by statute. Conn. Gen. Stat. § 51-164s. “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” Massey v. Branford, 119 Conn. App. 453, 458 (2010). “[T]he general rule of jurisdiction . . . is that nothing shall be intended to be out of the jurisdiction of [the] Superior Court but that which specially appears to be so.” Keller y. Beckenstein, 305 Conn. 523, 538 (2012) (quoting Raftopol v. Ramey, 299 Conn, 681, 695 (2011). “Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter.” Keller, 305 Conn. at 536 (quoting Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569 (2004)). “[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” Equity One, Inc. v. Shivers, 125 Conn. App. 201, 205 (2010). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” Id. at 205. “Standing is. . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, which each view fairly and vigorously represented.” Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 201-202 (2006). “These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802-803 (2009). A. STANDING FOR EMPLOYER Connecticut statute creates a right for employers to intervene in or bring an action against a third-party tortfeasor on behalf of an injured employee. Conn. Gen. Stat. § 31-293(a). As this right did not exist at common law, the scope of the employer’s right consists only of those privileges provided by 31-293(a). Pacific Insurance Company. Limited v. Champion Steel. LLC, 323 Conn. 254, 270 (2016). The statute establishes that, [A]ny employer . . . having paid, or having become obligated to pay, compensation under the provisions of [Chapter 568] may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. Conn. Gen. Stat. § 31-293(a). Skyline has statutory standing to bring this action against its employee’s third-party tortfeasor because it has become obligated to pay worker’s compensation benefits to the injured employee due to the Defendants’ negligence. In Hall v. O’Connor, the Judicial District of Fairfield held that an employee’s failure to provide notice to his employer under Section 31-293 did not affect the Court’s subject matter jurisdiction over the employee’s claims. Hall v. O’Connor, Superior Court, judicial district of Fairfield, Docket No. CV-10-6011894-S, 59 Conn. L. Rptr. 155, 2014 WL 6476606, at *4 (Oct. 21, 2014, Sommer, J.). “Failure to notify an employer of pending litigation pursuant to General Statutes [Section] 31-293 allows an employer to enter the action at any point in the proceedings.” Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385 (1988). Since the employee never notified the employer in Hall, the court held that the thirty-day limitation period never began to run and thus never ran out, so the court never lost subject matter jurisdiction over the employer’s claims. Hall, 2014 WL 6476606 at *4. The same rationale would seem to apply in this instant matter. I ARGUMENT The Plaintiff brings this action on behalf of the worker’s compensation insurer by and through the employer, Skyline Solar, LLC. The subrogation claim, ultimately, will reimburse the insurer for amounts it is obligated to pay as compensation to the injured employee asa result of the third-party tortfeasor. Pursuant to Connecticut statute, the Plaintiff employer has standing to bring this subrogation action. Under the common law doctrine of equitable subrogation, the Plaintiff’s worker’s compensation insurance carrier also has standing to bring this subrogation claim to the extent that it does not assert any greater rights than could the Plaintiff employer. Therefore, this Court, respectfully, has subject matter jurisdiction over the present action. THE PLAINTIFF, BY: 413126 Clayton J. Quinn, Esq. THE QUINN LAW FIRM, LLC 204 S. Broad Street Milford, CT 06460 .203.877.5400 £.203.877.5416 Juris No. 424062 CERTIFICATION This is to certify that the foregoing has been mail or delivered electronically or non- electronically, on this 23° day of January 2024 to all counsel and pro se parties of record as follows: Ms. Kattia Saint-Surin 253 Wurz Street Brentwood, NY 11717 Ms. Marie K. Aris 253 Wurz Street Brentwood, NY 11717 BY: 413126 CLAYTON J. QUINN, ESQ. Hall v. O'Connor, Not Reported in A.3d (2014) ———-EXHIBITA a 59 Conn. L. Rptr. 155 2014 WL 6476606 UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Connecticut, Judicial District of Fairfield. Garland HALL v. Joseph O'CONNOR et al. No. CV106011894S. | Oct. 21, 2014. Synopsis Background: Worker at scrap metal yard brought action against truck driver and trucking company, alleging one count of negligence and one count of recklessness, and seeking damages for injuries that worker suffered after being hit by truck. Defendants filed apportionment complaint against operator of scrap metal yard. Operator did not respond to apportionment complaint but filed intervening complaint. After a bench trial, the Superior Court, Judicial District of Fairfield, apportioned liability between parties due to comparative negligence, attributing 55% liability to defendants and 45% to worker. Worker filed motion for reconsideration and articulation. Holdings: The Superior Court, Sommer, J., held that: 30-day period for operator to intervene to recover amounts paid in workers' compensation was not commenced when defendants filed apportionment complaint, and operator was entitled to recover 100% of its workers' compensation lien from the proceeds of worker's recovery. Motion denied. Attorneys and Law Firms Daly Weihing & Bodell, Bridgeport, for Garland Hall. Silvester & Kappes, New London, for Joseph O'Connor et al. SOMMER, J. I INTRODUCTION *1 Before the court is the plaintiff's post-trial motion for reconsideration and articulation of the court's October 11, 2013 memorandum of decision following a bench trial. For reasons explained herein, the decision of the court remains unchanged, and the request for further reconsideration and/or articulation is hereby denied. ——= WE! © 2024 Thomson Reuters. No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) 59 Conn. L. Rptr. 155 This case arises out of a workplace accident involving two employees who worked for different employers. As described in detail in the court's October 11, 2013 memorandum of decision (decision), the plaintiff, Garland Hall, sued the defendants, Joseph O'Connor and his employer, All-Ways Dumpsters, Inc, (All-Ways), ! after he was hit by an All-Ways truck that was operated by O'Connor. More particularly, while the plaintiff was working at a scrap metal yard operated by his employer, Surf Metal (Surf), O'Connor backed up his dumpster truck and hit the plaintiff. This case followed. 1 The court will refer to O'Connor and All—Ways collectively as “the defendants” where appropriate. Hall's operative complaint, filed on November 8, 2010, alleges one count of negligence and one count of recklessness (# 106). The defendants filed an answer and two special defenses on July 23, 2012 (# 120). Their first special defense alleges that Hall's own negligence caused the accident; their second special defense alleges that Surf's negligence caused the accident. On December 13, 2010, the defendants filed an apportionment complaint against the apportionment defendant, Surf (# 107). They allege that, as Hall's employer, Surf had a number of safety-related obligations including, inter alia, the duty to ensure a safe workplace for its employees. The defendants claim that the accident was caused by Surf's negligence. Surf has not appeared in its capacity as an apportionment defendant, nor has it filed any responsive pleading with respect to the apportionment complaint, ° 2 As explained in the decision, Hall filed a motion to strike the apportionment complaint two and a half years later, but this motion was denied based on untimeliness and lack of standing. Nevertheless, Surf intervened pursuant to General Statutes §31-293(a),? thus becoming an intervening plaintiff. + 5 Its operative two-count intervening complaint was filed on October 18, 2011 (# 114). In count one, Surf alleges that the accident was caused by O'Connor's negligence, that O'Connor was acting as the agent of All-Ways, that Surf paid indemnity benefits— including workers' compensation benefits—to Hall, and that it seeks to recover all such outlays. Count two mirrors count one, except that it characterizes O'Connor's actions as reckless. 3 3 Section 31~293(a) provides, in relevant part, that an employee who suffers an injury that “has been sustained under circumstances creating in a person other than an employer ... a legal liability to pay damages for the injury” may “proceed at law against such person to recover damages for the injury ...” The statute further provides that “any employer ... having paid, or having become obligated to pay, compensation under the provisions of [the Workers' Compensation Act (act) ] may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee ... If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer ... shall take precedence over that of the injured employee in the proceeds of the recovery ...” The court, Stodolink, J., granted Surf's motion to intervene (# 113) on August 7, 2012. The appointment complaint lists New Hampshire Insurance Company, and Chartis Claims, Inc., as additional intervening plaintiffs. Nevertheless, neither of these entities has appeared in this case. With respect to liability, the decision reads: “[T]he actions of the defendant All-Ways and its employee, O'Connor, were the proximate cause of the accident which injured ... Hall ... [Nevertheless] Hall's own negligence contributed to the accident and the injuries he claims to have sustained ... The court attributes 55 percent liability to the defendants and 45 percent liability to [Hall]. Judgment shall enter for [Hall] on the first count [for negligence] ... [Hall] did not present any facts from which the court could find that the actions of the defendants were reckless or wanton. Judgment shall enter for the defendants on the second count [for recklessness] ... [T]he apportionment plaintiff [Surf] has not met its burden of proof.” With respect to damages, Hall “proved that he sustained injuries to his lumbar area ... for which he is entitled to recover damages for medical care and lost wages.” Accordingly, this court awarded Hall $3 | ,402, reflecting the total amount of proven economic damage that he suffered, adjusted downward to account for his 45% apportioned liability. In turn, Surf was “entitled to recover the amount of its lien under the statute.” WES rLAW © 2024 Thomson Reuters. No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) —— 59 Conn.L. Rptr. 155 *2 On October 31, 2013, Hall filed a motion for reconsideration and articulation. Hall asks the court to reconsider the following: (1) its award of 100% of Surf's workers’ compensation lien without reductions for apportioned liability or Hall's failure to recover for his cervical spine injuries; (2) its finding that Hall was 45% at fault for the accident; (3) all of the evidence regarding the proximate cause(s) of Hall's injuries in light of a fair preponderance standard of proof or, alternatively, to articulate the evidentiary standard that the court applied in its determination regarding causation; (4) its requirement that a medical doctor specializing in orthopedic medicine provide expert testimony to supplement that of Robert Pesale, a chiropractic practitioner, regarding the causal connection between the accident and Hall's injuries and its decision, therefore, to deny recovery for some of Hall's medical bills or, alternatively, to articulate the basis for its disregard of Pesale's expert testimony regarding the causal connection between the accident and some of Hall's alleged injuries and the basis for denying damages for Hall's cervical spine injuries; and (5) its decision to not award overtime pay or, alternatively, to articulate the basis for denying damages therefor. All of the other appearing parties objected to Hall's motion to reconsider. Surf objected on the basis that reimbursement is governed by General Statutes § 31-293 and Hall's contrary position regarding this issue is unsupported by statute or case law (# 143). O'Connor and All-Ways simply objected (# 144). Hall's motion for reconsideration was granted and the appearing parties were present at a hearing on June 10, 2014. Based on arguments raised and presented at the hearing, the parties were ordered to further brief two issues of law. Surf filed its memorandum on June 23, 2014 (# 149), and Hall filed his memorandum on June 24 (# 150). II. Whether the Court Lacks Subject Matter Jurisdiction Pursuant to C.G.S. § 31--293(a) The first additional issue of law that the parties were ordered to brief is whether, pursuant to General Statutes § 31-293(a), © this court lacks subject matter jurisdiction over Surf's claims, based on the fact that it was served with process as an apportionment defendant in December of 2010, but failed to file an appearance or intervening complaint until October of 2011. 6 Section 31~293(a) provides: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer ... having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shail immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer ... gives written notice of a lien in accordance with this subsection. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery. If the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure seed i’ © 2024 Thomson Reuters. No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) —— 59 Conn. L. Rptr. 155 solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second Injury Fund. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word ‘compensation,’ as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31—284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages. Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit, and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Injury Fund has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.” (Emphasis added.) Surf argues that, pursuant to § 31-293(a), its intervening complaint was timely and proper. That section provides, in relevant part: “If the employee, the employer or the custodian of the Second Injury Fund brings an action against such [third] person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection ... The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section.” (Emphasis added.) It is Surf's contention that because its employee Hall never provided Surf with proper notice of this action, the limitations period for Surf's right to intervene never began to run and, thus, never expired. *3 Inresponse, Hall argues that Surf received notice when O'Connor, and All-Ways served process on Surfas an apportionment defendant to this action. Therefore, in Hall's words, the “spirit and intent” of Chapter 568 of the General Statutes was safeguarded and, accordingly, the court lacks subject matter jurisdiction over Surf's untimely claims. Hall fails to cite any legal authority in support of this argument. In this case, the court has followed the rule first enunciated in Lakewood Metal Products, Ine. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967) that “[a]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time ... because, until notice is given, the time does not begin to run.” = WESTLAW © 2024 Thomson Reuters. No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) ——— a 59 Conn. L. Rptr. 155 “Where a cause of action has been created by statute, strict compliance with the prescribed procedure is essential ... The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.” (Citation omitted; internal quotation marks omitted.) Rana v. Ritacco, 236 Conn, 330, 336 n. 4, 672 A.2d 946 (1996). “General Statutes § 31-293 grants to an employer who has paid workers’ compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors ... provided that the right is exercised in a timely fashion ... By authorizing an employer to obtain reimbursement for workers' compensation benefits from a third party tortfeasor [§ 31-293] implements the public policies of preventing double recovery by an injured employee ... and thereby containing the cost of workers’ compensation insurance ... “Under § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more ... Once a potential intervenor has been properly notified, he has thirty days within which to intervene. If an employer or employee who is properly notified of a third party action fails to intervene in the action as a party plaintiff within thirty days from notification, his right of action against such third person shall abate ... On the other hand, [a]n employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given, the time does not begin to run.” (Citations omitted; internal quotation marks omitted.) Id., at 335-36, 672 A.2d 946. *4 “Failure to notify an employer of pending litigation pursuant to General Statutes § 31-293 allows an employer to enter the action at any point in the proceedings.” (Emphasis added.) Misiurka v, Maple Hill Farms, Inc., 15 Conn.App. 381, 385, 544 A.2d 673, cert. denied, 209 Com, 813, 550 A.2d 1083 (1988). “See [also] Gurliacci v. Mayer, 218 Conn. 531, 578-79, 590 A.2d 914 (1991) (ruling that city was not barred by 30-day period under § 3 1-293(a) where it never received proper statutory notice of commencement of action, even if it was actually aware of action, when it moved to intervene over four years past expiration of two-year statute); Light Sources, Inc. v. Global Equipment Corp., Superior Court, judicial district of Ansonia—Milford at Derby, Docket No. CV-01--0076465-S [2003 WL 231651] (January 10, 2003, Nadeau, J.) [ (33 Conn. L. Rptr. 633) ] (granting employee's motion to intervene by holding that intervening plaintiff was not properly given notice, and that defendant was not prejudiced under Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 716 A.2d 71 (1998) when motion to intervene filed almost four years after employee's injury); Fire Systems, Inc. v. Semac Electrical Contractors, Superior Court, judicial district of New Haven at New Haven, Docket No. CV-96-0382930-S [1999 WL 558104] (June 22, 1999, Devlin, J.) (24 Conn. L. Rptr. 684) (concluding that employee could intervene in employer's suit where employer never provided employee with notice under § 31~293(a), where employee moved to intervene almost three years after the expiration of the two-year statute).” TRC Companies, Inc. v. ABM Janitorial Services Northeast, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09— 5032748-S, 2011 WL 5531318 (October 25, 2011, Peck, J.) (52 Conn. L. Rptr. 808, 810-11). Here, Hall does not dispute that he failed to provide proper notice—or any notice—of this action to Surf. He also does not dispute that any notice Surf did receive was delivered via O'Connor and All—Ways. In contending, nevertheless, that this court lacks subject matter jurisdiction over Surf's claims, Hall not only ignores contrary yet binding appellate authority, but also the requirement specifically set forth in § 31~293(a) that he himself provide notice to Surf, and that portion of § 31-293(a) providing: “the bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section.” (Emphasis added.) Hall's attempt to obtain the benefit of § 31~-293(a) without having complied with the clear statutory mandate is unavailing. Because he failed to notify Surf of this action in accordance with the requirements incumbent upon him pursuant to § 31-293(a), the thirty-day limitation period never began to run against Surf and, thus, never ran out. Accordingly, this court never lost subject matter jurisdiction over Surf's claims. TL AW © 2024 Thomson Reuters. No clairn to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) 59 Conn. LRpir. 155 III. Whether Surf's Recovery Must Be Reduced Proportionately to Hall's Comparative Negligence Or Whether It is Entitled to Recover Its Entire Lien *5 This second issue of law that the parties were ordered to brief, and the first issue raised by Hall in his motion, is whether, pursuant to § 31-293(a), Surfis entitled to recover 100% of its workers' compensation lien from the proceeds of Hall's recovery or if, alternatively, Surf's recovery should be proportionally reduced relative to that of Hall's, which was reduced due to his comparative negligence. Surf argues that § 31-293(a) does not authorize such a reduction and, thus, any diminishment of its return based on Hall's diminishment would be contrary to the intent of the legislature. Surf argues further that any such reduction would be contrary to public policy. It emphasizes that its right to full recovery is fair under our no-fault workers' compensation scheme, whereby it must pay out benefits in full without regard for an employee's contributory negligence. Thus, while Hall's contributory negligence may have proportionally diminished his own recovery for the accident, it has no bearing on Surf's right to recover the full amount of its workers' compensation payouts. Finally, Surf argues that any reduction would run contrary to Supreme Court authority. In response, Hall concedes that, under § 31-293, employers are entitled to reimbursement for their workers’ compensation outlays, and that this right prevents employees from unfairly recovering twice for the same injury. Nevertheless, Hall argues that if Surf is permitted to collect the full amount of its lien, then Hall will be “double punished,” and possibly recover nothing at all, Hall also contends that because Surf's right to intervene is a derivative action that arises from Hall's underlying claims, neither Surf's rights nor its recovery may exceed those of Hall. “When an employee suffers a work-related injury, workers' compensation benefits are the exclusive remedy as between the employee and the employer ... The employee, however, may bring a civil action against parties other than the employer who are responsible for the employee’ injuries ... When an employee brings such an action, [§] 31-293 ... provide[s] that ... the plaintiff's employer ... may join the proceedings as a plaintiff and recover from the judgment against the third party any compensation benefits paid. Specifically, the [statute] provide[s] the [employer] with a right of reimbursement from the judgment against the third party for (1) the amount of any compensation which [it] has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury.” (Citations omitted; internal quotation marks omitted.) Cruz v, Montanez, 294 Conn. 357, 366-67, 984 A.2d 705 (2009). “By authorizing an employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor ... [§ 31-293] implements the public policies of preventing double recovery by an injured employee ... and thereby containing the cost of workers' compensation insurance.” (Citation omitted; internal quotation marks omitted.) Rana v. Ritacco, supra, 236 Comn. at 335, 672 A.2d 946. *6 Despite Hall's argument, the statute in question directly addresses this issue. With respect to priority in interest, § 31— 293(a) provides, in relevant part: “[I]f the employer and the employee join as party plaintiffs in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee and affecting the recovery period.” (Emphasis added.) “[T]he language of § 31-293(a) is clear. An employer that pays workers’ compensation benefits to an injured employee is entitled to reimbursement for those payments from ‘any damages’ that the employee may recover from the third party tortfeasor. General Statutes § 31— 293(a) ... [Flor purposes of § 31-293(a), the term ‘any damages’ means damages of whatever kind or sort, without limitation ... [Thus] the unambiguous directive of § 31-293(a) [is] that the employer shall be reimbursed from ‘any damages' obtained by the employee against the third party tortfeasor ... [This] conclusion is buttressed by the fact that the legislature has limited deductions against a plaintiff's recovery to economic damages in other statutes but has not done so in § 31-293(a) ... Accordingly, we may presume that, if the legislature had intended to limit the apportionment of damages under § 31-293(a) ... it would have done so explicitly.” (Citations omitted.) Cruz v. Montanez, supra, 294 Conn. at 369-70, 984 A.2d 705. AW © 2024 Thomson Reuters. No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported - A.3d (2014) Si 59Conn. L. Rpt. 155 In Cruz, the court held that an employer's right to recover its workers' compensation payments extended to non-economic damages recovered in an action by an employee, even though the workers' compensation payments were for economic damages. Cruz v. Montanez, supra, 294 Conn. at 371, 984 A.2d 705. Our Supreme Court has further held that this right of recovery is unconditional. Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 780, 610 A.2d 1277 (1992) (thus, comparative negligence not valid special defense to employer's intervening claim for reimbursement). The right of priority that is vested in employers is unqualified because “one of the primary goals of § 31—293(a) ... [is] to ensure that ... the ultimate loss [falls on] she wrongdoer... by allowing the employer to take action in order to recover the workers' compensation benefits [that] it was legally obligated to pay to its injured employee .., The concept underlying third party actions is the moral idea that the ultimate loss should fall upon the wrongdoer ... It is equally elementary that the claimant should not be allowed to keep the entire amount both of his or her compensation award and of the common-law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse it for its compensation outlay, and to give the employee the [remaining amount].” (Citations omitted, emphasis added; internal quotation marks omitted.) Cruz v. Montanez, supra, 294 Conn. at 371, 984 A.2d 705. *7 In the present case, three “wrongdoers” share fault for the accident: O'Connor, All—-Ways, and Hall himself, who was 45% responsible. Thus, the moral idea that the weight of the loss be borne by the wrongdoer applies not only to O'Connor and All~ Ways, but also to Hail himself, Most importantly, though, it is the duty of this court to adhere to the plain meaning of § 31— 293(a), as adduced by our Supreme Court. Because, under § 3 |-293(a), the employer's right of priority is unconditional, Hall's arguments to the contrary are unavailing. IV. Standard of Proof and Related Evidentiary Issues All of the remaining issues raised by Hall in his motion for articulation and reconsideration address the standard of proof: applied by the court and the reasonability of the facts determined and damages awarded based on the evidence presented. First, Hall requests articulation of the evidentiary standard applied in the decision, Ina civil action, the burden of proof is on the plaintiff to prove all of the essential allegations of its complaint. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 ‘onn, 674, 678, 607 A.2d 370 (1992). “The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn, 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.” Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). Here, the court's colloquial description of the evidence at issue is not to be confused with the standard of proof applied to the evidence presented. The standard applied was the fair preponderance standard as required in civil actions of this nature. That is, the court rendered its decision in this case based on the better, or weightier evidence, as found by the court having weighed all of the facts presented. Accordingly, there is no need for the court to reconsider the evidence, having already done so according to the proper standard. Next, the court will address the reasonability of its factual findings and award of damages based on the evidence presented. ‘The plaintiff is under the misimpression that the court found that the plaintiff failed to prove that he had suffered injury to his cervical spine because he did not call an orthopedic doctor to testify. This is incorrect. The court considered the testimony of the plaintiff's treating chiropractor with respect to his alleged injuries. The court considered and weighed the testimony of the chiropractor as to both the claims of injury to the lumbar spine and the cervical spine. The court in fact found that the plaintiff suffered injury to his lumbar spine as a result of the incident. However, based on the evidence presented, the court concluded that the plaintiff failed to establish that he suffered injury to his cervical spine in the same incident. WESTLAW © 2024 Thomson Reuters, No claim to original U.S. Government Works. Hall v. O'Connor, Not Reported in A.3d (2014) i — eens 59 Conn. L. Rptr. 155 *8 The court considered the testimony of the plaintiff's expert as instructed by the Supreme Court. With respect to the testimony of experts, our Supreme Court has explained: “Expert testimony should be admitted when: (1) the expert has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003). Once an expert is qualified, his or her testimony will “assist the jury in understanding the evidence or in determining a fact in issue.” Id., at 686, 822 A.2d 228, citing Conn.Code Evid. § 7-2. Nevertheless, “[t]he [fact finder] is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge ... Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert's qualifications and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence.” Id., at 688, 822 A.2d 228. Thus, the purpose of expert testimony is not to inject the fact finder with an opinion. Rather, the purpose thereof is to assist the fact finder in understanding the evidence presented so that the fact finder may determine facts in issue. The neutral fact finder is under no obligation to adopt the conclusions of experts proffered by the parties. To the contrary, he or she must determine facts in light of al/ of the evidence presented, without abandonment of common sense or independent judgment. Accordingly, Hall's contention that the court wrongfully disregarded an expert opinion simply because it did not adopt that opinion is unavailing. With respect to the merits of the court's conclusions, “[i]t is axiomatic that the credibility of witnesses, the weight to be given to evidence and the inferences to be drawn from the evidence are all matters for the trier of fact.” Hutchinson v. Andover, 49 Conn. App. 781, 787, 715 A.2d 831 (1998). “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ... The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [s]he reasonably believes to be credible ... It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony ... The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other.” (Citations omitted; internal quotation marks omitted.) Jn re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999). See also Jn re Jason R., 129 Conn.App. 746, 772-73, 23 A.3d 18 (2011) (same). “Tt is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [NJothing in our law is more elementary than that the trier [of fact] is the final judge of the credibil ity of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). Finally “[t]he trial court has broad discretion in determining damages ... [which] must be proved with reasonable certainty.” (Citations omitted; internal quotation marks omitted.) Beverley Hills Concepts v. Schatz, 247 Conn. 48, 68-69, 717 A.2d 724 (1998). *9 In the present case, the determinations of the court as expressed in the decision are the result of careful and thorough consideration of all of the evidence that was presented. It is unnecessary for the court to reconsider or to further articulate those determinations, and the court declines to do so. Accordingly, the decision of the court remains unchanged, and the request for further reconsideration and/or articulation is hereby denied. All Citations Not Reported in A.3d, 2014 WL 6476606, 59 Conn. L. Rptr. 155 a End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. seein “WESTLAW © 2024 Thomson Reuters, No claim to original U.S. Government Works.