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Kuehl v. Koskoff

Court of Appeals of Connecticut

June 12, 2018

SYLVIA N. KUEHL
v.
ROSALIND J. KOSKOFF ET AL.

          Argued January 5, 2018

         Procedural History

         Action to recover damages for, inter alia, legal malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford; thereafter, the court, Povodator, J., granted the motion to substitute Clifford A. Mollo, executor of the estate of the plaintiff, as the party plaintiff; subsequently, the case was tried to the jury; verdict for the substitute plaintiff; thereafter, the court denied the defendants' motion for a directed verdict, motion for judgment notwithstanding the verdict, and motion to set aside the verdict, and rendered judgment in accordance with the verdict, from which the defendants appealed and the substitute plaintiff cross-appealed to this court. Reversed; judgment directed.

          James J. Healy, with whom, on the brief, was Matthew W. Naparty, for the appellants/cross-appellees (defendants).

          Ridgely Whitmore Brown, with whom were David M. S. Shaiken and Benjamin E. Gershberg, and, on the brief, Mark S. Shipman and Austin Sherwood Brown, legal intern, for the appellee/cross-appellant (substitute plaintiff).

          Lavine, Sheldon and Elgo, Js.

          OPINION

          LAVINE, J.

         Except in obvious situations, expert testimony generally is required to establish the element of causation in a legal malpractice case. See Bozelko v. Papastavros, 323 Conn. 275, 284-85, 147 A.3d 1023 (2016). ‘‘Because a determination of what result should have occurred if the attorney had not been negligent usually is beyond the field of ordinary knowledge and experience possessed by a juror, expert testimony generally will be necessary to provide the essential nexus between the attorney's [alleged] error and the plaintiff's damages.'' Id., 285.

         In this legal malpractice action, the defendants, Rosalind J. Koskoff and the law firm of Koskoff, Koskoff & Bieder, P.C., [1] appeal from the judgment of the trial court rendered, after a jury trial, in favor of the plaintiff, Sylvia N. Kuehl.[2] To summarize, this protracted litigation concerns the plaintiff's contention that the defendants breached the duty of care they owed her during their representation of her in an underlying personal injury action involving her late husband, Guenther Kuehl (decedent), when the defendants failed to file a claim for survivor's benefits under our Workers' Compensation Act (act), General Statutes § 31-275 et seq., within a year of his death.[3] At trial, the defendants claimed that the plaintiff failed to prove the proximate cause element of a negligence cause of action because she failed to present expert testimony that, more likely than not, she would have been awarded survivor's benefits under the act if the defendants had submitted her claim. On appeal, the defendants claim that the trial court improperly denied their motion for a directed verdict, motion for judgment notwithstanding the verdict, and motion to set aside the verdict.[4] We reverse the judgment of the trial court.[5]

         The following facts and procedural history are relevant to the issue on appeal. The events giving rise to this case began on the morning of June 26, 1991, when a squirrel darted across a street in Greenwich causing a motorist to swerve and collide with the motor vehicle operated by the decedent.[6] Later in the day, the decedent went to an emergency room and was diagnosed with a cervical strain. At the time, the decedent was the president and owner of Z-Loda Systems Engineering, Inc. (Z-Loda). Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 527, 829 A.2d 818 (2003). The decedent believed that he had been injured in the course of his employment because, at the time of the collision, he was driving from his Greenwich home, where he had an office in addition to his office at Z-Loda, to a business appointment in Tarrytown, New York. On August 3, 1991, the decedent suffered an aortic dissection that was surgically repaired. The plaintiff and the decedent believed that his aortic dissection was a result of the injuries the decedent suffered in the collision.

         On September 24, 1991, the decedent and the plaintiff each signed a retainer agreement with the firm for their respective claims arising out of the collision. The plaintiff's retainer agreement stated that the firm was retained ‘‘to pursue and if warranted to prosecute a claim or claims against any party or parties arising out of the following: Accident to my husband on 6/26/91 in Greenwich, CT.''[7] Koskoff was the firm's attorney who assumed responsibility for the case.

         On December 16, 1991, the decedent, on his own behalf, filed a notice of claim for workers' compensation benefits (compensation claim). Kuehl v. Z-Loda Systems Engineering, Inc., supra, 265 Conn. 528. On January 21, 1992, Z-Loda and Travelers Insurance Company (Travelers), the workers' compensation insurance carrier for Z-Loda, filed a notice contesting the decedent's claim on two grounds: that the collision was not work related and that even if it were, the decedent's injuries were unrelated to the collision.[8] Id., 528-29. On November 1, 1992, Koskoff, on behalf of the plaintiff and the decedent, commenced a personal injury action against the operator and owner of the motor vehicle (tortfeasors) involved in the collision. Id., 529. The decedent alleged claims to recover damages for his personal injuries and losses; the plaintiff alleged a claim to recover damages for loss of consortium.

         On November 14, 1992, the decedent died, and the plaintiff, as executrix of his estate, was substituted for him as the plaintiff in the personal injury action. Id. The plaintiff amended the complaint to allege that the decedent's death was a result of his aortic aneurysm, which in turn was a consequence of the injuries he sustained in the collision. Id. The plaintiff sent a copy of the amended complaint to Z-Loda in May, 1993, and Z-Loda moved to intervene in the personal injury action on the ground that it might become obligated to pay large sums to the decedent's estate ‘‘and/or to the plaintiff.'' (Internal quotation marks omitted.) Id. The plaintiff eventually settled the personal injury action and signed a release as to Travelers.[9] At the time of the decedent's death, Koskoff did not advise the plaintiff to contact a workers' compensation attorney because she knew that the decedent had met with an attorney specializing in workers' compensation law, [10] as previously recommended by Richard Bieder of the firm. ‘‘Although the decedent previously had filed a notice of claim for compensation in connection with his claim for workers' compensation benefits, the plaintiff did not file a separate notice of claim in connection with her claim for survivor's benefits.'' Id., 530 n.8.

         On July 22, 1998, however, the plaintiff requested a hearing for survivor's benefits pursuant to § 31-306. Id., 530. On August 31, 1998, the Workers' Compensation Commissioner (commissioner) held a hearing on the plaintiff's claim to determine whether she should be precluded from pursuing a claim for survivor's benefits due to the fact that she had not filed a formal notice of her claim within the statute of limitations pursuant to § 31-294c (a); id.; i.e., one year from the date of the decedent's death. Although the plaintiff presented several arguments as to why her failure to file notice should not be fatal to her claim, the commissioner concluded that her failure to file a formal notice precluded her from pursuing a claim for survivor's benefits. Id., 531-32. The plaintiff took two appeals, but the commissioner's decision was affirmed by the Workers' Compensation Review Board; id., 532; and by our Supreme Court. Id., 539. Our Supreme Court concluded that the plaintiff's failure to file a formal notice of claim pursuant to § 31-294c (a) deprived the commissioner of subject matter jurisdiction. See id., 534-35.

         Thereafter, on March 16, 1999, the plaintiff commenced the present action against the defendants, alleging that they had failed to tell her that she was required to file a notice of claim for survivor's benefits within one year of the decedent's death to confer jurisdiction on the commissioner. See St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 806, 12 A.3d 852 (2011). The plaintiff alleged two counts: negligence or legal malpractice and breach of contract. Following the plaintiff's death, Clifford A. Mollo was appointed executor of her estate and substituted as the party plaintiff in the present action.[11]

         The operative complaint was filed on May 1, 2014, during trial. It alleged in relevant part that the defendant was an attorney admitted to practice law in Connecticut and was employed by the firm. The plaintiff alleged that the decedent sustained personal injuries in the collision and that the tortfeasors had more than $3 million of insurance coverage. In addition, prior to the collision, Z-Lodahad purchased workers' compensation coverage from Travelers that was available to compensate the decedent and the plaintiff for their losses. The plaintiff further alleged that she had retained Koskoff to prosecute ‘‘a claim or claims against any party or parties arising out of [the decedent's]'' collision of June 26, 1991, and that the defendants accepted the employment and provided ‘‘legal representation to the plaintiff, '' which was continuous from October 19, 1991, until October 1, 1998.

         The operative complaint also alleged that the defendants commenced a personal injury action against the tortfeasors on behalf of the decedent and the plaintiff on November 1, 1992. The plaintiff as executrix of the decedent's estate was substituted as the plaintiff after the decedent died. The plaintiff alleged that ‘‘Koskoff, in the exercise of the skills ordinarily expected of attorneys in the community practicing law under the same or similar circumstances, knew or reasonably should have known'' that under the act, the plaintiff was entitled to file a claim for survivor's benefits; that the time for filing a written notice of claim for survivor's benefits was one year from the date of the decedent's death; and that the failure to file a written claim for survivor's benefits on or before November 14, 1993, would bar the plaintiff from receiving survivor's benefits under the act. The plaintiff also alleged that the value of her claim for survivor's benefits was in excess of $1 million.

         The plaintiff alleged that Koskoff was negligent in multiple ways but principally in that she failed to file a written notice of claim for survivor's benefits within one year of the decedent's death, failed to pursue benefits for the plaintiff when she knew or reasonably should have known that the plaintiff was entitled to them, and failed to advise the plaintiff that she had to file a notice of claim. In addition, she alleged that the defendants' negligent acts constituted legal malpractice that was a substantial factor in proximately causing her damages. On May 5, 2014, the defendants filed an answer and special defense to the amended complaint, in which they denied its material allegations and pleaded the special defense of comparative negligence on the basis of the plaintiff's alleged negligence in failing to consult with other counsel for the purposes of filing for benefits under the act as she had been advised to do, and failure to retain counsel for that purpose.

         The parties tried the case to a jury in April and May, 2014. The evidence relevant to the determinative issue in this appeal concerns the expert testimony the plaintiff presented as to the prevailing standard in the legal community, whether Koskoff had breached that standard of care when representing the plaintiff, and whether the alleged breach proximately caused the plaintiff's alleged losses and damages.[12] The plaintiff's expert witness was Thomas Willcutts, an attorney who practices in the areas of personal injury and workers' compensation law. The defendants contend that he did not offer expert testimony as to the prevailing standard of professional care, but instead ...


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