Michael Rubino v. Andrew Brucker (2014)

MEMORANDUM OF DECISION RE MOTION TO REARGUE (117.00)

The motion for reargument is denied.   The court adheres to its decision and the reasoning set out in its memorandum of decision dated December 4, 2013, with the following additional comments and conclusions.

As stated in the December 4 memorandum, this is a close case.   In fact, although the cases were not mentioned in the court's initial memorandum, the court did read and consider Bruno v. Geller, 136 Conn.App. 707, cert. denied, 306 Conn. 905 (2012), and Liberty Mutual Insurance Co. v. Lone Star Industries, 290 Conn. 767 (2008), cited by Brucker in his summary judgment motion and relied on in his motion to reargue.   The court concluded they were not applicable to the present case.

In Bruno the Appellate Court said “we disagree that complete mutuality is necessary under these circumstances.”  136 Conn.App. 727.   The “circumstances” noted by the Appellate Court included Bruno's choosing to raise her fraud claim against her husband's employer in the family division of the Connecticut Superior Court, which specifically ruled against Bruno;  then she chose a second forum, the New York State Supreme Court, to pursue the fraud claim which ruled against her on collateral estoppel grounds, and finally she made the same claim against her husband's employer and its CEO in the civil division of the Connecticut Superior Court.   These circumstances convinced the Appellate Court that the requirement of mutuality “must yield to public policy.”  Id., 728.   In this case those circumstances are not present;  indeed the plaintiff had no choice as to his first forum.

Liberty Mutual Insurance, is, as the reargument motion recognizes, distinguishable on its facts.   Because of the different fact scenario, this court was not convinced that in the Probate Court the plaintiff had a full opportunity to attempt to establish the defendant's negligence.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.