Date: 03-30-2010

Case Style: Middlesex Mutual Assurance Company v. Marguerite A. Komondy

Case Number: AC 29665)

Judge: Beach

Court: Court of Appeals of Connecticut on appeal from the Superior Court of Middlesex County

Plaintiff's Attorney: Heather J. Adams-Beman, for the appellee (plaintiff).

Defendant's Attorney: Robert T. Rimmer, for the appellant (defendant).

Description: The defendant, Marguerite A. Komondy, appeals from the judgment of the trial court granting the application to confirm an arbitration award filed by the plaintiff, Middlesex Mutual Assurance Company, and denying her motion to vacate the award. The defendant claims that the court improperly (1) confirmed the award and denied her motion to vacate and (2) failed to issue an order specifying the manner of payment of the award. We reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. The defendant owned a home in Chester. She purchased the home before she married Christopher Komondy and has been at all relevant times the sole owner of the property. The defendant was insured against loss to her home pursuant to a ‘‘restorationist’’ policy (policy) issued by the plaintiff. The policy provides coverage that includes payment of the amount necessary to restore a home to its original state after a fire or other loss.

On March 5, 2005, while the policy was in effect, the defendant’s home was destroyed in a fire. The defendant and the plaintiff were unable to agree on an estimate of an amount necessary to restore the property, and the plaintiff demanded arbitration to resolve the dispute. Following a provision in the policy, the parties submitted the dispute to arbitration by appraisers. The submission directed the arbitrators to determine the actual cash value and the replacement cost of the property.

Arbitration proceeded. A total award in the amount of $1,794,919.76 for ‘‘replacement cost damage’’ was signed by the two appraisers and the umpire on August 1, 2007.2 David C. Jones, the appraiser appointed by the defendant, sent a letter providing notice of the award to the defendant’s address. The letter was dated August 9, 2007, and was mailed on August 14, 2007. The envelope containing the letter was addressed only to Christopher Komondy; the salutation of the letter itself was to ‘‘Chris and Marguerite.’’ Jones also faxed a copy of the award to Christopher Komondy on August 14, 2007. The cover sheet of the fax was directed to ‘‘Chris.’’ The defendant testified that she recognized the letter as a document that Christopher Komondy had received from Jones.

The plaintiff filed an application for confirmation of the award on August 27, 2007. On October 10, 2007, the defendant objected to the application and moved to vacate the award. On February 19, 2008, the court confirmed the award and denied the defendant’s motion to vacate as untimely because it was not filed within thirty days of notice of the reward, as required by General Statutes § 52-420 (b).3 The court concluded that the defendant ‘‘received actual notice via her husband [Christopher Komondy],’’ and ‘‘[t]here is no dispute that [Christopher] Komondy was serving de facto, as [the defendant’s] agent and representative in the discussions and negotiations with [the plaintiff].’’ (Emphasis in original.)

This appeal followed.

I

We first address the defendant’s claim that the court improperly confirmed the arbitration award and denied her motion to vacate, in which she claimed that she never properly received written notice of the award. We disagree with her claim.

Unless a provision in the arbitration agreement provides otherwise, General Statutes § 52-416 requires that notice of an arbitration award be given to parties within thirty days from the date the hearing or hearings are completed. Hayes v. Travelers Indemnity Co., 26 Conn. App. 418, 421, 601 A.2d 555 (1992). General Statutes § 52-416 (b) specifically states that ‘‘[w]ritten notice of the award shall be given to each party.’’ The statute does not specify the manner in which notice must be given to the parties.4 The arbitration hearings were completed on August 1, 2007. The letter and the fax were sent by Jones on August 14, 2007, within the prescribed period.

The defendant, however, argues that there is no evidence in the record that anyone gave written notice of the award to her personally. This argument is based on the facts that the defendant at all times relevant was the sole owner of the property, and both the fax and the envelope containing the letter were addressed to Christopher Komondy. We disagree with the defendant because Christopher Komondy possessed apparent authority5 to receive the written notice on the defendant’s behalf.

We begin with the applicable standard of review. Whether Christopher Komondy had apparent authority to accept notice on behalf of the defendant is an issue of fact that we review under the clearly erroneous standard. See Host America Corp. v. Ramsey, 107 Conn. App. 849, 858, 947 A.2d 957 (‘‘[t]he issue of apparent authority is one of fact’’ [internal quotation marks omitted]), cert. denied, 289 Conn. 904, 957 A.2d 870 (2008); Union Trust Co. v. McKeon, 76 Conn. 508, 514, 57 A. 109 (1904) (‘‘the existence of an apparent agency is essentially a question of fact’’). The clearly erroneous standard of review provides that ‘‘[a] court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.’’ (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). Because the defendant does not claim that the notice given to Christopher Komondy was defective, we must determine only whether the court’s finding that Christopher Komondy had apparent authority was clearly erroneous.

‘‘Apparent authority must be derived not from the acts of the agent but from the acts of his principal. [T]he acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.’’ (Internal quotation marks omitted.) Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 674, 686 A.2d 491 (1997).

‘‘[A] course of conduct . . . may give rise to the apparent authority of one spouse to act on behalf of the other. . . . [A spouse] habitually permitted by [the other spouse] to attend to some of [his or her] business matters may be found to have authority to transact all of [his or her] business affairs. . . . An act routinely performed by one spouse for the other may give rise to apparent authority for that spouse to perform the same or a closely related act.’’ (Internal quotation marks omitted.) Lopez v. United States, 201 F.3d 478, 482 (D.C. Cir. 2000), quoting 1 Restatement (Second), Agency § 22, comment (b) (1958); see also Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936).

The defendant and Christopher Komondy were married and lived together. These facts alone do not create apparent authority for him to accept written notice of the award on behalf of the defendant. See Cyclone Fence Co. v. McAviney, supra, 121 Conn. 659. The following additional facts, however, support the court’s conclusion that he was acting as the defendant’s agent with regard to the various communications between those involved in the arbitration process. At trial, the defendant testified that Christopher Komondy was the one who was actively communicating with Jones and representatives of the plaintiff regarding the arbitration process. She testified that ‘‘[e]verybody seemed to be sending all communications to [Christopher Komondy].’’ The defendant further testified that she never notified anyone involved in the arbitration process that they should be speaking to her instead of Christopher Komondy. Christopher Komondy testified at trial that he personally made telephone calls to and received them from Jones and William M. Zimmer, a claims representative of the plaintiff, on multiple occasions.

He also testified that he corresponded via mail on multiple occasions with Jones and Zimmer. Zimmer testified that he dealt primarily with Christopher Komondy and not the defendant. Both the envelope containing the letter and the fax from Jones were addressed to Christopher Komondy. Jones testified that by sending the letter and the fax, he believed that he was providing written notice of the award to ‘‘the Komondys.’’

The court reasonably could have found that the defendant knowingly permitted Christopher Komondy to act as though he possessed authority to receive communications between the parties to the arbitration, including the written notice of the award, on her behalf. Moreover, the court reasonably could have found that Jones believed that Christopher Komondy had authority to receive notice of the award. These conclusions are supported by the testimony that Christopher Komondy handled all of the communications and that the defendant never informed anyone that she should be the point of contact instead of Christopher Komondy. We conclude that the court’s finding that Christopher Komondy had apparent authority to accept written notice on behalf of the defendant was not clearly erroneous. Because the defendant’s agent received the fax on August 14, 2007, and presumably received the letter shortly thereafter, the defendant’s motion to vacate the award filed on October 10, 2007, properly was denied as untimely pursuant to § 52-420, and the application to confirm properly was granted.6

II

The defendant further argues that the court, having confirmed the award, improperly failed to specify the manner of its payment as required by General Statutes § 52-421 (b)7. Specifically, the defendant argues that the court improperly failed to require that the award be paid in a lump sum within sixty days as required by General Statutes § 38a-3078 and subsection 10 of § I of the policy.9 We disagree.

‘‘Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’’ (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

We first note that neither § 38a-307 nor subsection 10 of § I of the policy is controlling. Both concern standard fire insurance policies, by the terms of which the company agrees to pay actual cash value. Section 38a- 307 sets forth the standard form fire insurance policy, which provides coverage to an insured for loss to property ‘‘to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss . . . .’’ General Statutes § 38a- 313 provides: ‘‘Nothing contained in section 38a-307 shall be construed to preclude insurance indemnifying the insured against the amount actually expended, in excess of actual cash value at the time any loss or damage occurs, to repair, rebuild or replace the insured property.’’ Section 38a-307 does not apply to ‘‘restorationist’’ policies such as the one at issue in the present case because it expressly governs only coverage for actual cash value, not coverage for replacement cost.

This distinction is made more clear by § 38a-313. Moreover, in context, the specific policy provision cited by the defendant regarding payment within sixty days, subsection 10 of § I, applies to actual cash value, not replacement cost. In context, subsection 3 (a) (2) of § I specifically refers to the timing of payment for replacement cost: ‘‘We will pay no more than the actual cash value of the damage until actual repair, restoration or replacement is complete. Once actual repair, restoration or replacement is complete, we will settle the loss . . . .’’ Subsection 3, rather than subsection 10, applies specifically to the defendant’s replacement costs and does not direct payment to be made within sixty days.10

In any event, the court declined to issue an order specifying the manner of payment on the ground that § 52-421 (b) permits a court to direct the manner of enforcement of an award only when the award requires the performance of any act other than the payment of money. It concluded that ‘‘[b]ecause the award in this case is exclusively monetary, the court does not believe it has the authority to direct that the award be disbursed . . . as requested by the defendant.’’ The court further concluded that it was limited to confirming the award by our decision in Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn. App. 1, 632 A.2d 713 (1993). In that case, this court held that General Statutes § 52-417 ‘‘contains no provision for finding facts or resolving additional disputes.’’ Id., 5. Section 52-417 provides that in ruling on an application to confirm an arbitration award ‘‘[t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-41811 and 52-419.’’12 In the present case, the court concluded that it was limited to either confirming, modifying or vacating the award and was without authority to issue an order specifying the manner of its payment.

We agree with the court and conclude that in these circumstances the court was without authority to issue an order specifying the manner of payment within the context of the application to confirm this award. There is no requirement in § 52-421 (b) that the court, in confirming an award, specify the manner of payment. Moreover, § 52-417 ‘‘sets forth the authority of the trial court in ruling on an application to confirm an arbitration award.’’ Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., supra, 33 Conn. App. 5. ‘‘The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in . . . §§ 52-418 and 52-419.’’ Id., 4. In Amalgamated Transit Union Local 1588, we stated that, absent a motion to vacate, modify or correct filed within the thirty day time limit specified in § 52-420, § 52-417 requires the court to confirm the award and ‘‘contains no provision for finding facts or resolving additional issues.’’ (Emphasis added.) Id., 4–5. As we stated in part I of this opinion, the defendant failed to file a timely motion to vacate the award. Thus, the court was limited to confirming or not confirming the award and was without authority to resolve additional issues such as specifying the manner of payment.

Furthermore, arbitrators are limited to deciding the issues included in the submission. See General Statutes § 52-419 (a); see also Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 228–29, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). The submission in this case requested resolution only of the appropriate numeric values and the time in which the restoration was to be completed.13 The award addressed only those values, and the court’s resulting judgment confirmed only those values. Any issue of manner of payment was appropriately not addressed in the ruling confirming the award.14

Finally, the award of the arbitrators, dated August 1, 2007, provided that the ‘‘period of restoration shall not exceed February 1, 2009.’’ During the pendency of this appeal, the time period expired. In these circumstances, the case is remanded to the trial court for further proceedings in order to set a new date.

* * *

See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP120/120AP507.pdf

Outcome: The judgment is reversed only as to the restoration date and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

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