Date: 01-26-2010

Case Style: Charles J. Baranowski, Jr. v. Safeco Insurance Company of America

Case Number: AC 30003

Judge: Schaller

Court: Connecticut Court of Appeals

Plaintiff's Attorney: Eddi Zyko, Middlebury, Connecticut, for the appellant (plaintiff).

Defendant's Attorney: Joseph Sweeney, Halloran & Sage, L.L.P., Hartford, Connecticut, with whom, on the brief, was Brian J. Gedicks, for the appellee (defendant Sundel & Milford, Inc.).

Description: The plaintiff, Charles J. Baranowski, Jr., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Sundel & Milford, Inc.1 On appeal, the plaintiff claims that the court improperly (1) declined to instruct the jury that expert testimony was not required to apply the law and (2) granted the defendant’s motion to preclude the testimony of an expert witness. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiff’s appeal. In March, 1998, the plaintiff met with Kathy Milford, an agent of the defendant, to procure personal automobile insurance. Milford explained to the plaintiff each type of coverage available and the limit amounts. Milford discussed with the plaintiff uninsured and underinsured motorist coverage, including underinsured motorist conversion coverage.2 Underinsured motorist conversion coverage is a type of underinsured motorist coverage.

See General Statutes § 38a-336a.3 ‘‘This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists . . . .’’ Florestal v. Government Employees Ins. Co., 236 Conn. 299, 307, 673 A.2d 474 (1996) ‘‘[Unlike] coverage under § 38a-336, it is activated when the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.’’ (Internal quotation marks omitted.) Id. In contrast to traditional underinsured motorist coverage, underinsured motorist conversion coverage is not reduced by the amount of any payment received by or on behalf of the tortfeasor or a third party. Compare General Statutes §§ 38a-336 (b) to 38a-336a (c). The plaintiff elected the standard underinsured motorist coverage with bodily injury liability of $100,000 for each person and $300,000 for each accident. Milford then prepared an insurance application form with the coverages the plaintiff elected. The plaintiff and Milford signed the insurance application, which then was submitted to Safeco Insurance Company of America (Safeco Insurance). Safeco Insurance issued an automobile insurance policy pursuant to the application.

The plaintiff’s insurance policy automatically renewed every six months. Milford testified that she did not discuss underinsured motorist conversion coverage with the plaintiff after the initial meeting.

On February 3, 2001, the plaintiff was involved in an automobile accident. In his complaint, the plaintiff alleged that he sustained injuries and other damages exceeding $500,000. The driver of the vehicle who caused the accident (tortfeasor) was insured by Travelers Property Casualty (Travelers). The plaintiff recovered $50,000 from the tortfeasor’s insurance carrier for the injuries he sustained. The plaintiff then submitted a claim to Safeco Insurance to collect on the underinsured motorist coverage provided by his policy. The plaintiff did not have underinsured motorist conversion coverage. Safeco Insurance ultimately paid the plaintiff $35,000 on the underinsured motorist claim. Thereafter, the plaintiff brought an action against the defendant, claiming negligence and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The action was based on allegations that the defendant failed to offer underinsured motorist conversion coverage to the plaintiff or to ensure that he knowingly rejected it after being fully and fairly informed.

I

The plaintiff first claims that the court improperly declined to instruct the jury that expert testimony was not required for the jury to determine whether the defendant complied with § 38a-336a in offering the plaintiff underinsured motorist conversion coverage.

Specifically, the plaintiff argues that the court improperly declined to adopt his proposed instruction that ‘‘[u]nderinsured motorist conversion coverage is a relatively straightforward inquiry that is not manifestly beyond the ken of the average trier of fact.’’4 We disagree.

‘‘We first set forth the well established standard of review for a challenge to the propriety of a jury instruction.

. . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’’ (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 23–24, 961 A.2d 1016 (2009).

The plaintiff argues that the court should have instructed the jury as follows: ‘‘Expert testimony is required only when a disputed matter is manifestly beyond the ken of the average trier of fact, be it judge or jury. . . . The issues before the court involved . . . § 38a-336a. Underinsured motorist conversion coverage, and the defendant’s compliance therewith. This statute requires that [e]ach insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with [§] 38a- 336. Whether the defendant in fact complied with that requirement is a relatively straightforward inquiry that is not manifestly beyond the ken of the average trier of fact.’’

The plaintiff argues he was entitled to this jury instruction pursuant to Michalski v. Hinz, 100 Conn. App. 389, 404–405, 918 A.2d 964 (2007). The plaintiff’s reliance on Michalski is misplaced. In Michalski, the defendant challenged on appeal the trial court’s denial of his motion for a directed verdict. Id., 404. He argued on appeal that ‘‘the plaintiffs could not establish a prima facie case of negligence without the aid of expert testimony.’’

Id. The issues before the court in Michalski involved boating regulations and the defendant’s compliance therewith. Id. Specifically, the question was whether ‘‘our boating regulations require the sounding of a horn when two vessels are approaching in a headon situation.’’ Id., 404–405. This court, in response to the defendant’s argument, stated that ‘‘[e]xpert testimony is required only when a disputed manner is ‘manifestly beyond the ken of the average trier of fact, be it judge or jury.’ ’’ Id., 404.

In the present case, the plaintiff has failed to explain why, on the facts of this case, he is entitled to such an instruction. Additionally, the court instructed the jurors that they were the sole triers of fact and that no testimony was binding on them.5 Absent evidence to the contrary, a jury is presumed to have followed the court’s instruction. See State v. Banks, 117 Conn. App. 102, 119, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1091 (2009). Furthermore, the plaintiff has not put forth any reason that the jury instructions given did not provide ‘‘the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.’’

(Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., supra, 112 Conn. App. 23. Accordingly, we conclude that the court did not abuse its discretion when it declined to give the plaintiff’s requested charge.

II

The plaintiff next claims that the court improperly granted the defendant’s motion to preclude the testimony of his expert witness. Specifically, the plaintiff contends that the court improperly concluded that a licensed insurance agent who was not employed fulltime as an insurance agent in Connecticut at the time the plaintiff applied for insurance was per se unqualified to give an opinion as to the standard of care applicable to licensed insurance agents in Connecticut at that time.6 We disagree.

The following additional facts are relevant to our resolution of the plaintiff’s claim. Prior to trial, the plaintiff disclosed to the defendant a proposed expert witness, Kim Fiertz, who would testify as to how personal lines automobile insurance should be sold in Connecticut and how to document the selling of such insurance. Specifically, Fiertz was expected to testify that an agent should use a checklist when completing an application for automobile insurance and that the checklist should include whether the applicant had an opportunity to consider applying for certain coverage.7 By motion in limine, the defendant sought to preclude Fiertz from testifying on the ground that she was not qualified as an expert. Specifically, the defendant claimed, and the court found, that Fiertz did not know the standard of care applicable to licensed insurance agents in Connecticut in 1998.

During the hearing on the motion in limine, Fiertz testified that after she graduated from college, she completed the American Institute for Chartered Property Casualty Underwriter program. In 1980, Fiertz received her New York license to sell insurance. In 1990, Fiertz got a license to sell insurance in Connecticut as a nonresident. In 2001, Fiertz moved to Connecticut and converted her license to a resident license. She continued to work for an insurance agency based in New York.

All the New York agencies Fiertz worked with used checklists to review client coverages. Fiertz admitted she had no knowledge as to how any Connecticut insurance agency might have dealt with this issue.8 Fiertz also testified that in New York, insurance agents routinely, on at least an annual basis, review coverages with the client and recommend upgrades. Fiertz admitted that she had no personal knowledge of the annual review standard being followed by any independent insurance agents in Connecticut.

From 1995 to 1997, Fiertz participated in insurance continuing education programs in New York. She testified that she was familiar with ‘‘idiosyncrasies’’ in Connecticut because of the continuing education courses.9 New York and Connecticut have reciprocity with respect to continuing education. Fiertz did not know whether Connecticut required continuing education before 2001. She further could not indicate whether the classes she took in New York specifically dealt with selling automobile insurance in Connecticut or dealt with Connecticut law.

‘‘The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Expert testimony should be admitted when: (1) the witness 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. . . . It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.’’ (Citations omitted; internal quotation marks omitted.) State v. Banks, supra, 117 Conn. App. 115–16; see also Conn. Code Evid. § 7–2.10

The plaintiff contends that the court improperly concluded that a licensed insurance agent who was not employed full-time as an insurance agent in Connecticut at the time the plaintiff applied for insurance was per se unqualified to give an opinion as to the standard of care applicable to licensed insurance agents in Connecticut at that time.11 The plaintiff’s argument is based on the court’s statement: ‘‘Fiertz, who I do think could qualify as an expert, but not as an expert of what happened in the state of Connecticut in this particular field in 1998 . . . .’’12 The record supports the court’s finding that Fiertz was precluded from testifying because she in fact did not know the applicable standard of care of insurance agents in Connecticut during the relevant time frame.13 We agree with the plaintiff that an expert’s ‘‘knowledge may be drawn from reading alone, from experience alone, or from both.’’ (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 806, 601 A.2d 1013 (1992). The plaintiff has failed to show, however, that Fiertz acquired sufficient knowledge, either from reading, experience or course work, of the applicable standard of care in Connecticut in 1998. The record is clear that the court did not abuse its discretion in making this finding. Accordingly, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP119/119ap129.pdf

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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