Superior Court of Connecticut, Judicial District of New Haven, New Haven
Daniel R. Hedges et al.
Town of Madison
MEMORANDUM OF DECISION
LINDA K. LAGER, JUDGE.
This case was filed on behalf of the plaintiff, Daniel R. Hedges, against the defendant Town of Madison on January 21, 2011. As a result of docket management activities, new counsel filed an appearance on the plaintiff's behalf on March 21, 2014 and the operative second amended complaint (entry #110) was filed with the defendant's consent on June 23, 2014. Thereafter the defendant (Madison) moved for summary judgment on all four counts of the operative complaint (entry #125). By agreement, the motion was denied as to the first count, alleging a cause of action under General Statutes § 31-51q (the 31-51q count), and granted as to the second and fourth counts. Following oral argument, the court (Blue, J.) denied the motion as to the third count alleging breach of contract in a written memorandum of decision (entry #125.20) [59 Conn. L. Rptr. 813]. On July 7, 2015, jury selection commenced. On July 21, 2015, the parties waived their claim to a jury trial on the third count and elected a trial to the court (entries ##179, 180). The jury trial proceeded on the 31-51q count. A verdict was returned in favor of the defendant on the 31-51q count on August 10, 2015.
On August 11, 2015, the court heard the third count alleging breach of contract. The parties agreed that the court could consider the admitted allegations of that count and any relevant testimonial evidence that had been presented in the jury trial of the 31-51q count as well as certain previously marked full exhibits which were moved into evidence specifically in connection with the contract claim.
The court finds the following facts: Pursuant to the terms and conditions of an Agreement between Madison and the International Brotherhood of Police Officers, Local 456, effective from July 1, 2005-June 30, 2012 (the Agreement), ex. 502, a pension plan entitled " Town of Madison Police Department Retirement Plan" (the plan), ex. 501, was maintained for the employees of the Madison Department of Police Services under Article 7 of the Agreement during the relevant time period. The terms and conditions of the plan were negotiated through the collective bargaining process in which Madison and the union then representing Madison police officers participated.
Daniel R. Hedges (Hedges) served as a Madison police officer from 1991 until he was terminated from his employment by the Madison Board of Police Commissioners on May 29, 2008. At the time of his termination, Hedges had been employed as a Madison police officer for nearly seventeen and one-half years. During the time of his employment, Hedges was eligible for and elected to participate in the plan.
Under the terms of the plan, the Police Retirement Board was to manage and administer the plan including making rules, establishing criteria for pension qualifications, holding hearings, keeping minutes and issuing decisions. Disability pension requests are governed by the plan. The directly applicable section of the plan is § 2.27. In adjudicating the motion for summary judgment, the court (Blue, J.) determined that Hedges was a " Vested Participant" within the meaning of § § 2.17(5) and 5.3 of the plan and therefore " had a potential right to Disability Retirement Benefits" under § 2.27. (Memorandum of Decision, entry 125.20, p.2.)
On May 7, 2010, Hedges sought a disability pension retirement benefit under the plan, as of the date of his separation, May 29, 2008, when his then attorney submitted an application and cover letter to Rita C. Umile, Madison's Manager of Human Resources, ex. 504. The letter represented that the form had been provided to counsel by Town Attorney Dugas. An addendum of supplemental information was also submitted which gave additional summarized information in support of the application including a list of injuries Hedges claimed to have suffered on the job. The letter requested that Hedges's application be presented to the Police Retirement Board at its next scheduled meeting on May 24, 2010 and that counsel be contacted if there were questions or the need for additional information.
The Police Retirement Board met on May 24, 2010. Hedges's application for a disability pension was considered in executive session. The unapproved minutes of the May 24, 2010 Police Retirement Board meeting state that " [a]t 8:31 the Board went into executive session to discuss the disability pension request of Daniel R. Hedges" and " [a]t 8:40 on returning to regular session a motion, made by Jeffrey Rosenberg and Seconded by Robert Stimpson, to deny the request for a disability pension by Daniel R. Hedges was approved, " ex. 64. Hedges's counsel was notified of the decision on May 27, 2010 and was advised, by way of letter dated June 8, 2010, that the " Retirement Board's decision to deny Mr. Hedge's [sic] request for a disability pension is considered final." Id.
The parties agree that there are four elements to a breach of contract claim: formation of an agreement, performance by the plaintiff, breach by the defendant and damages. See Ibar v. Stratek Plastic Limited, 145 Conn.App. 401, 410, 76 A.3d 202, cert. denied, 310 Conn. 937, 79 A.3d 890 (2013). Madison does not dispute that it maintained the plan, ex. 501, pursuant to the terms and conditions of the applicable collective bargaining agreement, ex. 502. Consequently, Madison concedes the formation of the contract as a matter of law. Madison does not concede that Hedges was eligible to make a claim under the plan. However, the court agrees with Judge Blue's conclusions that he was a " Vested Participant" within the meaning of the plan and " had a potential right to Disability Retirement Benefits" under the terms of the plan. (Memorandum of Decision, entry 125.20, p. 2.) Testa v. Geressy, 286 Conn. 291, 306-07, 943 A.2d 1075 (2008). (" Where a matter has previously been ruled upon interlocutory, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.))
" One cannot recover upon a contract unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing." Automobile Insurance Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947). Relying on Vanghele v. Fairfield, 156 Conn.App. 714, 722, 115 A.3d 474 (2015), Madison submits that Hedges failed " to make an affirmative showing" that he met the requirements of the plan and consequently cannot demonstrate performance. Madison's position is that Hedges failed to perform in accordance with the plan because he did not submit the results of an examination by a physician of his choice along with his application and that this is a material breach which excused it from further performance under the plan to select a physician of its choice who would examine Hedges. See Shah v. Cover-It, Inc., 86 Conn.App. 71, 859 A.2d 959 (2004). Hedges maintains that the plan only required him to submit his application to the Board and be willing to submit to medical examinations in accordance with § 2.27 and that he tendered performance and is not in breach himself. See Automobile Insurance Co. v. Model Family Laundries, Inc., supra, 133 Conn. at 437.
Accepting, without deciding, that " an applicant for service connected permanent disability benefits must make an affirmative showing that he or she has met the requirements of [the retirement plan], " Vanghele v. Fairfield, supra, 156 Conn.App. 722,  there is nothing in Madison's plan that required Hedges to do anything other than to be examined " by two physicians, one of whom shall be selected by the Town and the other by the participant." The plan does not state that an applicant had to submit the results of an examination by a physician of his choice along with his application or submit any showing of disability to trigger its examination protocol. The only requirement of the plan is that disability, and resulting incapacity, as defined in § 2.27 " shall be determined" by the designated Medical Board. See n.4, supra . Hedges tendered performance under the plan by submitting his application dated May 6, 2010, along with supplemental information, and by expressing his willingness to comply further through counsel, as set forth in counsel's letter of May 7, 2010, ex. 504.
Having concluded that Hedges tendered performance, the next step is to determine whether the facts establish that Madison materially breached the terms of the plan when the Police Retirement Board summarily denied Hedges's application without a designated medical board's determination of disability and incapacity pursuant to § 2.27. A breach of contract is material if it deprives a party of a benefit that the party reasonably expected to receive under the terms of the contract. Restatement (Second) of Contracts, § 241(a) (1981); see Bernstein v. Nemeyer, 213 Conn. 665, 672, 570 A.2d 164 (1990) (endorsing use of the § 241 test for material breach). Under the terms of the plan, the benefit that Hedges, a vested participant, could reasonably expect to receive was a medical board's " final and conclusive" determination of whether or not he was disabled within the meaning of § 2.27(1) and as a result totally and permanently incapacitated from performing the duties of a Madison police officer within the meaning ...