Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
David Christiano, Jr.
Michael Cavallo et al
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR PROTECTIVE ORDER NOS. 180 & 195
MARK H. TAYLOR, J.
The defendants request a protective order in this matter pursuant to Practice Book § 13-5. They seek an order prohibiting the plaintiff or his legal counsel from demanding payment of a claim for damages and discovery after the entry of a nonsuit. The proposed order would prohibit contact with the defendants, directly or indirectly, counsel for the defendants, counsel for EMC Insurance Company (EMC) or any other insurance company contracted by the defendants.
This matter arises from damage to the plaintiff's automobile which occurred on the defendants' premises in December 2012. This disputed claim for damages was assigned for trial on August 4, 2015, at which the plaintiff and his attorney failed to appear, upon which a judgment of nonsuit was entered against the plaintiff. No postjudgment motion to open has been filed. No appeal has been filed.
The defendants assert that, notwithstanding the nonsuit, the plaintiff's counsel repeatedly emails counsel for the defendants and counsel for defendants' new insurer, EMC, demanding payment of the claim and discovery. The defendants further assert they have repeatedly requested that the plaintiff's counsel stop communicating regarding the matter, because it has concluded. Despite this admonition, counsel for the defendants and EMC continue to receive demands for payment of the underlying claim and for other information, including the location and amount of its reserves for the payment of this claim.
At the hearing held on September 25, 2015, counsel for the defendants summarized the history of the case and the interactions between the parties. Included was the assertion that the plaintiff and his attorney made attempts to contact and negotiate with the defendants directly, citing their Motion for Protective Order dated and filed June 23, 2015 (No. 180). In their most recent Motion for Protective Order, dated September 3, 2015 (No. 195), the defendants additionally assert that plaintiff's counsel has been contacting the defendant's current commercial liability carrier, EMC, demanding payment for this 2012 claim, as well as the defendant's personal homeowner's carrier for this claim which occurred on his business property. The defendants highlighted for the court the unsuccessful attempt by the plaintiff to cite EMC as a defendant, claiming bad faith and asserting he was a third-party beneficiary under the policy. See Motion to Cite Additional Party (No. 153.00), denied by the court (Shapiro, J.) on April 13, 2015. Notwithstanding the fact that EMC is not a formal party to this action, its attorney attended the hearing and was permitted, on a limited basis, to participate in the proceeding.
After a recitation of these and other claims, the attorneys for the defendants and EMC reiterated their plea for a protective order against these unwanted and continuing communications, and asserted them to be unjustifiable in light of the judgment of nonsuit. In response, the plaintiff's attorney did not deny these assertions of fact. Instead, he stated that his client's damages were continuing to accrue and courteously invited the defendants to engage in the discussion of a " global settlement" of their claims. To this, counsel for the defendants and EMC emphatically stated that there is no case pending and that there is no offer of settlement, or will there be, on the claim arising from damage to the plaintiff's automobile, occurring in December 2012.
Pre-litigation communications between legal counsel are not unusual. Pre-judgment discovery and settlement negotiations in active cases are not unusual and may occasionally require supervision by the court. Postjudgment settlement negotiations are not unusual, especially in the context of an appeal. The question presented here involves an unusual question; namely, what is the court's role in supervising private settlement negotiations, generally, especially after a lawsuit has gone to judgment? More typically, the court is called upon to enforce substantive judgments, usually in the context of a civil judgment for money damages after a default, trial on the merits or settlement agreement. We have here, instead, a judgment of nonsuit for the defendant, albeit not on the merits.
Discovery in support of an existing or future legal claim is permitted through an independent, equitable Bill of Discovery. Postjudgment discovery is permitted in a number of contexts such as, for example, court-supervised examinations of judgment debtors and disclosure of assets. As defendants' counsel plainly states, there is no active litigation pending in light of the judgment of nonsuit, yet contact and ongoing attempts at discovery are asserted to be persistent. The plaintiff's legal counsel nonetheless states no present plan to file a motion to open the nonsuit entered in this case, and simply leaves open the possibility that his client may pursue future litigation, involving different causes of action in this or other forums.
The Motions for Protective Order pending before the court (Nos. 180 & 195) reference Practice Book § 13-5;  a provision often used in the context of active litigation. " The . . . court's inherent authority to issue protective orders is embodied in Practice Book § 13-5 . . . The use of protective orders and the extent of discovery is within the discretion of the trial judge." Coss v. Steward, 126 Conn.App. 30, 46, 10 A.3d 539 (2011). Here, the plaintiff seeks discovery and to resolve a private dispute outside the parameters of formal litigation. This approach might be welcomed in some instances by some parties, but not by both parties in the present case.
Clearly, an attorney may not communicate directly with a party represented by counsel, as alleged. In addition, if the defendants or EMC conclude that the plaintiff's continuing demands for damages are for the sole purpose of harassment and are devoid of any legitimate legal purpose, they may also seek relief under section 4.4 of the Rules of Professional Conduct. The court declines to issue findings or orders on these claims, for to do so would then substitute a procedure involving the remedy of contempt in place of an established procedure for the investigation of alleged violations of the Rules of Professional Conduct. The court also declines to characterize the validity of the claims asserted by the plaintiff against EMC, which is not a party in this case. EMC has, however, ...